
    Lewis Duckwall v. A. Y. Rogers and L. G. Marshall.
    1. An undertaking for stay of execution on a judgment of a justice of the peace, taken and signed after the period fixed by the statute for entering the same, when based upon a sufficient consideration, i-s valid as a common law contracjt, though it may not be available under the statute.
    2. The release of a levy and further delay of execution on the judgment for the period fixed by the statute, is a sufficient consideration for such undertaking.
    3. The execution of the undertaking on the docket of the justice, without a further delivery being contemplated by the parties to render it effectual between them, is a complete delivery.
    4. The remedy given by the statute (S. & C. Stat. 800, sec. 172), on undertakings for stay of execution, is not exclusive, but cumulative only.
    Error to the court of common pleas of Brown county. Reserved in the district court.
    The material allegations in the petition filed in the court of common pleas, by Lewis Duckwall, are, that D. W. Duck-wall, on the twenty-first day of December, 1860, recovered a judgment for one hundred and eighty-four dollars, against David Kinzer, before a justice of the peace of Brown county; that an execution was issued thereon, and, on the twenty-third day of the same month, was levied on eleven stacks of hay, as the property of Kinzer, which was advertised, by the constable, to be sold on the nineteenth day of January, 1861; that, on that day, D. W. Duckwall, the plaintiff in the judgment, agreed with Kinzer, the defendant therein, and Rogers and Marshall, the defendants in this case, to release said levy and cause the execution to loe returned, in consideration that Kinzer would cause an undertaking, for the stay of execution on said judgment, to be entered with Rogers and Marshall as his sureties, which they agreed to do; that, in pursuance of said agreement, the levy was released, and the execution returned. It is further averred, that an undertaking was entered by the justice upon his docket, and signed by Rogers and Marshall; a copy of which is as follows:
    “In pursuance of the statute in such case made and provided, we, L. Gr. Marshall and A. Y. Rogers, sureties for stay of execution on the above judgment of D. W. Duckwall against David Kinzer, do hereby promise, and undertake to pay the amount of the above judgment, interest and costs, and the costs which may hereafter accrue.
    A. Y. Rosees,
    L. G-. Marshall.”
    The foregoing undertaking was taken, signed and acknowledged before said justice, the nineteenth day of January, 1861.
    It is further averred, that, on the twelfth day of November, 1861, an execution was issued on said judgment, which was returned nulla bona; that, on the second day of December, 1861, said D. W. Duckwall assigned to Lewis Duckwall, the plaintiff in this case, all his right, title and interest to said judgment and undertaking; and that said Lewis Duckwall is the owner thereof.
    The defendants demurred to the petition, assigning the following causes:
    1. That the justice had no authority to accept the undertaking, upon which the action is founded, and that, therefore, it is void.
    2. That it does not appear, that, at the date of said undertaking, the defendants were residents of Brown county.
    3 That the court had no jurisdiction of the action.
    
      The court of common pleas sustained the demurrer, and rendered judgment for the defendants.
    To reverse this judgment, a petition in error was filed in the district court, and was reserved for decision in this court.
    
      James Sloane, for plaintiff in errror.
    
      James U. Thompson, for defendants in error.
   Hay, J.

The questions presented upon this record were raised by the demurrer to the petition in the court below. The first two are based upon the supposition that the undertaking of the defendants entered upon the docket of the justice, was unauthorized by the statute, relative to the stay •of execution on judgments rendered by justices of the peace. S. & C. 797, sec. 156. If the court should determine that the undertaking had no effect as a statutory proceeding, the question would still remain whether it is not a valid obligation independent of the statute; if so, these objections of the defendants vanish.

Although the period had elapsed, within which a statutory stay of execution could be procured, the parties to the judgment were competent to secure the same thing in substance, ¿by contract. Such a contract would be neither immoral nor ¡illegal, and might be a valid common law contract, though not ra good statutory undertaking. Croy v. Ohio, Wright’s Sup. Ct. Rep. 135; Barret v. Reed, 2 Ohio Rep. 409; Ohio v. Findley, 10 Ohio Rep. 51; United States v. Bradley, 10 Peters, 359; United States v. Linn, 15 Peters, 290.

The instrument signed by the defendants contains all the •requisites of a valid contract. They thereby “promise and •undertake to pay the amount” of the judgment mentioned -in the record to which it is appended; the name of the party •in whose favor the judgment was rendered, and to whom the amount was legally payable, is mentioned in the instrument. ’The consideration is sufficient, and, in this state, need not be Efitated in the writing. Reed v. Evans, 17 Ohio Rep. 128. l'f, however, the rule were otherwise, a consideration is clearly inferable from the. face of the instrument. Brown on Stat. oí Frauds, secs. 399, 404, 405.

It is a sufficient reply to the claim of the defendants, that the liability of sureties is limited to the exact letter of the contract, to say, that the case made in the petition is within both the letter and spirit of their contract, and that a literal performance of the contract is all that is sought by the action

It is insisted that the instrument was not delivered. It was, however, placed upon the docket of the justice, and no further delivery was contemplated by the parties to make it effective between them; it was, therefore, complete.

The demurrer to the jurisdiction of the court of common pleas is based upon the supposition that the undertaking is a good statutory instrument. The statute provides, that, after the return of an execution unsatisfied, “ the justice shall, unless otherwise directed by the party for whom the execution issued, commence an action on the undertaking for the stay of execution,” etc. S. & C. Stat. 800, see. 172. It is supposed that this confers an exclusive remedy. To hold this, might, in many cases, be a substantial denial of justice to the parties. In general, the jurisdiction of a justice is limited to the county, and can not exceed the bounds of the state. A local change of the surety might leave the other party without a remedy. Such a construction would be against the policy of the law. If the legislature intended to confer any additional jurisdiction by this provision, it was cumulative only to the general remedies of the law. The State v. West, 3 Ohio St. Rep. 509; Herig v. Nougaret, 7 Ohio St. Rep. 480.

The judgment of the court of common pleas is reversed, and the cause remanded for further proceedings.

Bbinkerhoee, O.J., and Scott, White and Welch, JJ., concurred.  