#### Picot v. Hardison, adm’x. &c.

From Bertie.

On an appeal from a Justice’s judgment, the security to the appeal is not bound, though he sign as security, unless the magistrate, granting the appeal,- sign his name as a witness to the signature of the security.

This was a sci. fa. issued from Bertie Superior Court, to the Defendant, as administratrix of one Asa Hardi-son, who was security of Rachel Hare, in an appeal granted on a judgment rendered by a magistrate, against Raclml Hare, in favour of the present Plaintiff.

The warrant was in the usual form, and on it were endorsements'as follow, viz : —

“Judgment against the Defendant for twenty pounds, with lawful costs, this l£)1h January, 1811.

(Signed) « EZEKIEL HARDISON.

“ The Defendant craves an appeal ; granted by giving for security,

(Signed) «ASA HARDISON.”

To the sci. fa. the Defendant appeared and pleaded, “ mil liú record.” It appeared in the Court below, irons *533the testimony of iidaekiei Hardison, tha1, ms a raagis-tralc, he gave the judgment endorsed on the warrant, on the 19th of January, 18 li, that the Defendant craved an appeal, which he granted on her offering Asa Hardison as security ; that Asa Hardison did not, on that day, sign the endorsement on the warrant, though lie said he would he Defendant’s security, but on the next day he did sign it in the presence of the witness.

Another question was presented by the record which it is unnecessary to state, as the Court did not consider it.

Taylor, Chief-Justuice.

This case depends upon the act of 1794, c. 414, sec. 17, the words of which are, “ that in all cases where appeals shall be granted from the judgment of a Justice, the acknowledgment of the security, and subscribed with his or her proper handwriting;. attested by the Justice, shall be sufficient to bind the security to abide by and perform the judgment of the Court.” The literal meaning of the word atlest, (tes-tar ad,') is to witness, and in that sense it would be sufficient for the Justice to be present when the security signed. But that is not the sense in which it is used, generally, by the legislature, nor, indeed, by law writers; but to contradistinguish a witness, whose name must.be signed, from one who may simply be called upon to prove the transaction, without having signed the evidence; of this a strong instance is furnished by two of the acts concerning wills, in one they speak of “ subscribing witnesses,”- — (1 Rev. Code, 47 f, sec. 11,) and in a subsequent reference to that expression, they speak of it as meaning “attesting witnesses,” — (1 Rev. Code, 511, sec. 5,) plainly denoting that they used them as convertible terms. The witnesses to a will are called attesting witnesses, because they must put their names to it, and it is the way in which the books, generally, express such witnesses, as must sign any instrument.

*534The act designed to make the mode, by which the se=? curity was bound, an officNi, authentic act, which might be proved by an inspection of the Justice’s signature, W0uld probably be known by some one on the bench, when judgment was moved for; and thus, to guard against the risk of charging persons who had not, in fact, signed as security. As a judgment may be entered upon motion, without any notice to the security, it was a necessary provision, that the fact of Ms being so, should be verified beyond a doubt, and fraud and perjury prevented as effectually as possible. A man who becomes security for an appeal, is not to be presumed to render himself liable upon any other terms, than those the law has prescribed, viz : that the magistrate shall attest his signature; for the next step would be to charge a man who had not signed his name, upon the magistrate’s proving that he had become security. The law must receive such a construction, as will impose upon the Justice a strict execution of the power entrusted to Mm, before a man can be rendered responsible, as a security, in a summary way. Where a power was created to be executed by trustees, with the consent of the cestui que trusts, certified by writing under hands and seals, attested by two or more credible witnesses, but the attestation expressed, only, that the deed had been sealed and delivered by the cestui que trusts, and the other parties, in presence of the subscribing witnesses, it was held that the power had not been duly executed. — (4 Taunt. 214.) And taking it in this case, that to “attest,” means to sign the paper, as well as to witness, the Justice has not well executed the power, and the Defendant is not liable.

An opinion on this point, renders unnecessary the consideration of another question presented by the record. The Defendant W'as security on the appeal to the County Comí, where the appellant prevailed, and then the original Plaintiff appealed to the Superior Court, *535and prevailed. Is tlic first security, (supposing the law to have been complied with,) liable ? On this I give no opinion.

II.41.& and [r¡;\iv;-.RS0N', Judges, concurred.