Dilliard v. Askew ( 1842 )

TtjRLey, J.

delivered the opinion of the court.

On the 19th day of September, 1840, Wm. H. Alsup and H. H. Alsup confessed a judgment, for the sum of $62 50, in favor of T. A. Lancaster. On the21st September, 1840, Alexander Dilliard, by a written authority, directed the justice who rendered the judgment to enter his name as stay on a judgment that T. A. Lancaster recovered against Wm. H. Alsup, on the 19th of September, 1840, for $62 50. On the 19th September this was done. When the time of stay expired, an execution was issued on the judgment against Wm. H. Alsup, H. H. Al-sup, and Alexander Dilliard the stayor; the latter of whose property was sold by Thomas B. Askew, the constable and one of the defendants, to pay the debt; and this action is brought to recover the value thereof.

The question for consideration is, whether the authority as worded was sufficient to warrant the justice to enter the name of Dilliard as security for the stay of execution; the circuit judge held that it was; and we think correctly. The proof shews that there was no other judgment rendered against Wm. H. Alsup on that day. The name of the plaintiff in the judgment, and the authority correspond. The amount and the date are the same, This shews with sufficient certainty, that this was the judgment which Dilliard intended to stay.

The fact that the judgment was also against H. H. Alsup cannot vitiate the proceeding; One party to a judgment may stay it. Dilliard was bound for Wm. H. Alsup, and the debt not being paid at the expiration of the stay, Wm. H. Alsup was liable and of course his security. Judgment affirmed.