Amonett v. Nicholas , 5 Mo. 557 ( 1839 )

Napton, Judge,

delivered the opinion of the court.

The bill of exceptions in this case discloses the following state of facts: Amonett obtained a judgment before a justice of the peace against one Sterling Peterson for one hundred and thirty dollars, or thereabouts. Peterson applied for a stay of execution, assuring the justice that the defendant, Nicholas, would become his bail, and accordingly, shortly afterwards, produced a letter from Nicholas, stating that he (Nicholas) would “enter himself as special bail” in the case of Amonett against Peterson. The stay was granted, and the justice after-wards inquired of defendant whether he considered himself bound for fhe principal, interest, and cost, on the judgment against Peterson, to which his reply was, that he did. It does not appear by the record or evidence that any application had been made to the justice who had issued the execution, to have the same quashed, or for any other relief. One of the witnesses proved that Nicholas, in a conversation with witness, said that he had become special bail, and he thought that Peterson had secured him (Nicholas) by giving him a wagon and team of oxen. No recognizance was entered into by Nicholas, but upon his verbal and written assurance of his willingness to become bail, or his belief that he was bail, the justice issued his execution against him as bail. Defendant applied to two justices of the county court for an injunction, which was granted, and the injunction was made perpetual by the circuit court. To reverse the decree of the circuit court, this writ of error is brought.

A justice of the peace has no power to issue an execution against an individual as bail of anoth er, against whom there was an unsatisfied judgment on the docket of the justice, merely because the former had promised to become bail, or because he considered himself bound for the amount of the judgment and costs.

The circuit court was clearly right in making the injunction perpetual. Whatever may be the liability of the defendant, either in law or equity, on his promise, the justice had no power to enforce that liability by execution.

The statute points out the mode of staying an execution, and the form of the recognizance which must be entered into — Rev. Code of 1836, p. 364. What right had the justice to issue an execution against defendant as bail, merely because he had promised to become bail, or because he considered himself as bail? The judgment of the circuit court is affirmed.