Patrick v. Driskill ( 1834 )

Peck, J.

delivered the opinion of the court.

To bind the security for the stay of execution, the person to be bound should either appear in person and make the acknowledgment before the justice, or he should give an authority to some one who will do it for him. Nor is, generally,' an authority by parol sufficient; it ought in strictness to be under the seal of him giving it. Not being under seal makes it of no higher validity than a verbal direction. The law knows of no third class of evidence, that of mere writing as contradistinguished from parol. If the presence of securities for a stay of execution is dispensed with, it can only be legally, supplied by an authority to another, to bind him staying the execution; still, as the statute of frauds tolerates a binding effect by writing, signed by the party to be bound, and for as much as the practice by a written authority not under seal has been taken in most cases by the justices as sufficient; and being aware of the effect of an innovation, that might too suddenly be made, we will consider a writing expressive of the intention of him signing it and be-comma; security for the stay of execution as sufficient* though not under seal.

But, if the stay of execution be allowed by the justice, it must be done within the time the judgment is under his control. As he may by act of assembly grant an appeal within two days, so he may within the same period take security for the stay, but not afterwards.

We will not say that a formal signing by the securities, when present, is indispensable; it is certainly the safest to have it so entered, "still as a recognisance will be good by acknowledgment, so it would seem that a like undertaking for the stay of an execution would be good, if taken with like solemnity. In proportion, however, as the jurisdiction of justices of the peace increases as to the -amount, so should there be an increase of strictness and regularity in their proceedings. Oftentimes the amount of the judgment rendered by justices involves all the property of those in the humbler walks of life, and to such the justice’s judgments áre of as serious consequence as the heavier judgments against the wealthy in the higher tribunals. See Justice’s, Manuel, 29, SO. As the justice had no authority to stay the execution after the two days allowed for an appeal’had passed, the security is not bound, and the judgment of the circuit court must be affirmed.

Judgment affirmed.