#### ADAIR’S ADMINISTRATOR *v.*ROGERS’S ADMINISTRATOR.

Courts of record — justices—nil debet — evidence—pleading.

A justice’s court is a court of record.

A plea of nil debet to debt on a justice’s judgment in this state, is bad on demurrer.

A court of record is one, the history of whose proceedings is perpetuated in writing.

Where a simple contract is the ground of the suit and a record the inducement, nil debet is a good plea, but where the record or specialty is the foundation and the simple contract the inducement, nil debet is not a good plea.

Under nil debel, the defendant may prove that he did not owe the plaintiff when the suit was brought.

If a judgment is declared on for the amount of the judgment, and is silent as to costs, it is no variance if the record show a recovery also for costs.

Debt upon a judgment of a justice of the peace. The declaration contains two counts; first, on a judgment for $> 198 40, and forty-seven and a half cents costs; the second, on a like judgment, saying nothing about costs. Pleas, nil debet, and nul tiel record. Issue was taken on the nul tiel record, and a general demurrer filed to the nil debet, which was joined.

By the Court.

If the defendant has a right to plead nil debet, he has no right to plead that and nul tiel record also. ■ They are inconsistent pleas, and the Court, on motion, will put the defendant to his election, and strike one of the pleas out; but the demurrer raises the simple question, whether nil debet is a good plea in debt on a justice’s judgment in this state?

In the case of the *Silver Lake Bank*v. *Hardin,*5 O. R. 546, the court determined such a plea good in debt upon the judgment of a justice in Pennsylvania, but expressly gave as the reason for it, that it was so held in that state. It has not been so held as to justices’ judgments in Ohio.

*429
      *Burr,*for the defendant,

objected the variance. The judgment declared upon is one for $198 40, and forty-seven and a half cents costs.

By our law, justices of the peace are required to keep a docket, in which they shall make fair and accurate entries of all suits before them, with their proceedings thereon. This docket is a public book and goes to the successor of the justice as belonging to *the office.*A *scire facias,*which only acts upon a record, issues upon it; and a certiorari brings up only a transcript of it for review, as copies of records are removed upon a writ .of error. The justice takes recognizances, which is an acknowledgment of record of a debt, and he has power to fine and imprison. 29 *O. L.*171, 2. Blackstone defines a court of record to be 4 that where the acts and judicial proceedings are enrolled on parchment, for a perpetual memorial and testimony; which- rolls are called the records of the court; and are of such high and supereminent authority, that their truth is not to be called in question.’ 3 *Bl. G.*24. In this state we may define a court of record to be one, the history of whose proceedings is perpetuated in writing. We have no parchment or *roll,*but a *hook of records*of paper, in which aloné, our judicial proceedings are preserved. 29 *O. L.*76, 86. If the justice’s docket does not show a substantial foundation for his judgment, it is reversed on a writ of certiorari — if the Common Pleas do not show in their record the same authority for its judgment, that is reversed on a writ of error. The judgments of both courts, while unreversed, are equally conclusive as to the subjects adjudicated upon. For all purposes connected with the question now before the court we hold both to be courts of record, and the plea of nil debet to debt upon the judgment of either, to be bad on demurrer. Nil debet is admitted a good plea in all cases upon simple contract, and in cases where a specialty or record is mere inducement to the facts on which a recovery is sought: but where the fact is the inducement, and the specialty or record the foundation of the suit, nil debet is not a good plea. *Ld. Ray R.*1500; *Strange*778. Under this plea the defendant may give in evidence any matter which goes to show that he did not owe the plaintiff any thing when the suit was commenced. The judgment of the justice here is the foundation of the suit, not mere inducement; the duly certified transcript of the docket entry proves itself, and is conclusive of the subject. No evidence can be admitted to impeach its accuracy. The demurrer is sustained.

The cause then come to a hearing before the court on nul tiel record. The plaintiff offered the j ustiee’s transcript showing a judgment for $198 40, and twelve and a half cents costs.

*430By the Court. The objection is fatal to the admission of the transcript on the first count. The second count, however, only describes the amount recovered independent of the costs. As to that count there is no variance, and the transcript is admitted.

' Judgment for the plaintiff.