#### A. J. MURRAY v. R. A. EDMONSTON.

An acknowledgement of one, as a surety for the stay of an execution, taken by a magistrate in the absence of the judgment, entered on a separate piece of paper and signed, by the proposed surety, is invalid, and no execution can be issued thereon against such signer.

Appeal from a,Justice’s judgment, tried before Bailey, J., at the Eall Term, 1858, of Jackson Superior Court.

One Sellers made a note to the defendant for $51, which he endorsed to the plaintiff, and the action was by warrant om the endorsement, and it was tried in the Superior Court upon the pleas, “general issue and payment.”

The evidence was that Murray, on receiving the note, placed it in the hands of Buchanan, a constable, for collection, and he warranted Sellers and got a judgment The judgment was kept by the justice of the .peace, and in a day or two afterwards, Sellers applied to the magistrate for a stay of execution. The application was made on Sunday, about two miles from the residence of the justice, at which latter place, the warrant and judgment were. The magistrate determined to grant the stay, and. to that end, he then entered Parks’ acknowledgment, in writing, on a small piece of paper, which was signed by Parks and attested by the'justice, and by the latter, attached to the j ndgment a few days afterwards. After the expiration of the stay, Buchanan, the constable, took ont a fi. fa. against sellers and Parks, and sold a horse belonging to Parks, for the debt. Parks afterwards brought trover against Buchanan, and recovered the value of the horse, on the ground that the stay was a nullity as to him, and then this suit was brought.

' The only question made at the trial, was whether the stay of execution granted at the time, and in the manner stated, was valid or invalid as against Parks. The presiding Judge held it to be a nullity, and a verdict and judgment being rendered accordingly, the defendaint Appealed*.

*516 J. W. Woodjm, for the plaintiff.

Merriman, for the defendant.

Ruffin, J.

The defence was, that the endorser was discharged by the payment of the note by the maker, or by one coming in his place. Now, the supposed payment was not voluntary, but was exacted from Parks as alleged by him, on illegal and void process; and on that ground he recovered the value of the horse; so that, in fact, the debt has not yet been received by the plaintiff. Still, if the money were properly raised on the execution, and ought not to have been recovered by Parks, but kept by the plaintiff, or his officer, in satisfac-faction of the debt, it would amount to payment, and discharge the defendant as endorser. It is to be noted here, that the defendant did not make the point, that the recovery was improperly made against Buchanan, since the writ of execution was a justification as to him as constable, though the plaintiff, Murray, or the magistrate, might have been liable. Possibly the point was waived, because Buchanan, as collecting agent, was chargable with the responsibilities, in such a case, of the judgment creditor or his attorney. But be that as it may, the question was not raised, and the case was distinctly put by both parties on the single point, whether the proceeding was sufficient, in law, to charge Parks, as surety for the stay of execution. On that, the opinion of this Court concurs with that of his Honor.

It has been the constan t course of j nstices to en ter the acknowl-edgement of persons as sureties for appeals or for staying executions, on the warrant and judgment. With respect to the latter, the words of the statute are, “ the acknowledgement of the surety entered by the justice, and signed by the surety, shall be sufficient to bind him and then the act directs that any justice may issue execution against the principal and surety. It is thus seen, that nothing is to be left to parol; but the acknowledgement is to be in writing, and signed by the party ; and that acknowledgement is to be “ entered” by the justice. Where and when entered? Plainly, the entry *517is to be made at the time of the acknowledgement and signature, and, as plainly, it must be on the same paper with the judgment, or, at least, on one annexed to it at the time of the entry; so as to prevent the substitution of one judgment for another. The engagement of the surety is not in the form of a contract, drawn out at length, but is a simple acknowledgement that he is surety to stay that judgment, and signed by him ; which is construed in reference to the law authorising the proceeding, and in reference to the particular judgment mentioned and annexed. Such a construction is required, as well for the protection of the surety from imposition as to the amount of his liability, as, for the security of the creditor, and to enaable him to see, at once, when, and against whom he may have execution. Hence, as was remarked in Rickmon v. Williams, 10 Ire. Rep. 126, it is obvious that the provision is in the nature of a statute of frauds and perjuries, and, therefore, no latitude is allowable in applying the act, which would expose either party to imposition. That all the proceedings are to be on the same paper is an idea which pervades all the the other parts of the act relative to the engagement of sureties for an appeal, or stay of execution. Thus, an appeal or stay of execution is subsequently provided for, when the party may be absent at the trial, or if present, may not be prepared to give security. In such cases the plaintiff may have execution immediately ; but it is enacted, that, on the application of the other party to give security, the justice, if the judgment and papers be not in his hands, shall cause them “ to be returned to him, to the end, that such stay may be entered, or such appeal be allowed which plainly implies that the stay is to be entered on the judgment itself, and signed thereon by the surety. It follows that the surety cannot be bound in any other way, so as to authorise an execution against him as upon a judgment.

As that is decisive of the case, the judgment is affirmed, without adverting to the other point as to the time, being on Sunday.

PeR Cueiam, Judgment affirmed.