
    E. M. Apperson et al. vs. James S. Smith.
    1. Execution. When sent to another county. Justice of the Peace• Certificate of Clerh. Act of 1805, eh. 66, $ 4. Where a justice’s execution is sent from one county to another, the clerk of the Oounty Court must certify thereon the official character of the justice rendering the judgment. A mere certificate that he was an acting justice of the peace at the time of the issuance of the execution is not sufficient.
    2. Statob. Stay entered after execution issued. ■ Same. Act of 1842, ch. 136, § 4. After the issuance of an execution upon a justice’s judgment, the two days allowed for staying having expired, a justice has no authority to receive a stay upon said judgment, and no consent or agreement of the parties can give him such power.
    3. Cases Cited. Eason vs. Cummings, 11 Humph., 210; Roberts vs. Cross, 1 Sneed, 233; Bynum vs. Murrill, 8 Humph., 701; Ellis vs. Bivens, 4 Sneed, 146; Howard § Co. vs. Brownlow, lb., 548; 2 Meigs’ Dig., 657.
    EROM SHELBY.
    Tbe defendant recovered a judgment before a justice of tbe peace of Tipton county, on tbe 20tb day of May, 1854, against' - James H. Cocbrill, for one hundred and forty-three dollars and thirty cents, upon which execution was issued. The plaintiffs, citizens of Shelby county, having bought of said Cocbrill certain slaves, went to the county of Tipton on the 20th June, 1854, to secure and bring away said slaves. On being told by the constable, who held said execution, that the same was a lien upon the slaves, they agreed with said constable that they would become stayors on said judgment. This they did in the absence of the justice, without the consent- of the defendant in this case; but in the presence of said. constable. They entered their names as stayors on the justice’s docket, and the fact was' sometime after made known by the constable to the justice, who approved and adopted the same. The first execution was accordingly withdrawn. At the expiration of eight months from, the date of the judgment, said justice issued another execution against the original party, and these plaintiffs, as stayors. This execution was certified to the county of Shelby by the clerk of the County Court of Tipton, and upon it, a justice of Shelby issued an execution against the parties. The certificate of the clerk certifies alone to the official character of the Tip-ton justice at the time the execution was issued. The plaintiffs brought the case by certiorari into the Common Law Court of Memphis. It was tried at the July Term, 1857, before Judge Caruthees, who charged the jury that a stay entered within eight months after the rendition of the judgment, with the consent of the plaintiff or his agent, was á valid stay. Yerdict and judgment were for the defendant. The plaintiffs appealed in error.
    J. E. R.. Ray, for the plaintiffs.
    J. CALVIN JONES, for the defendant.
   A. Weight, Special J.,

delivered the opinion of the Court.

1. The act of 1805, ch. 66, § 4, (C. and N. Rev., 295,) requires the clerk to certify that the magistrate who granted the judgment and issued the execution was, at the time an acting justice of tbe peace in bis county. In tbis case tbis is not done. Tbe clerk only certifies as to tbe official character of Wiseman, tbe justice, at tbe date of tbe issuance of tbe execution. Tbis certificate, and tbe execution attached to it, did not, therefore, authorize Rose, tbe justice of tbe peace of Shelby county, to issue an execution against tbe plaintiffs in error, and tbe same is void. Tbis question was decided by tbis Court in Eason vs. Cummings, 11 Humph., 210.

2. Again: Tbe plaintiffs in error became stayors of tbe judgment before Wiseman, tbe justice, after tbe two days, allowed by law to stay executions, bad expired, and after an execution had actually isstied, and perhaps been levied in tbe case. Tbis was done with tbe consent of tbe constable, who bad charge of tbe creditor’s ■ claim. What authority be bad to do tbis, from tbe creditor, other than that furnished by bis official position, does not very clearly appear in tbis record. But we bold tbis to be immaterial, as tbe justice of tbe peace had no jurisdiction to receive tbe stay after tbe execution had issued.

Previous to tbe passage of tbe act of 1842, cb. 136, § 4, (Nicb. Supp., 278,) a stay of execution, entered more than two days after judgment, was void. 2 Meigs’ Dig., 657; George W. Howard Co. vs. Brownlow, 4 Sneed, 548-550. It follows that tbe authority for tbis stay must rest alone upon that act. But under its provisions tbe justice has no power to receive and enter the security for tbe stay of tbe judgment after it is satisfied, or an execution ufon it is issued.

Whatever effect may be given to tbe contracts of parties variant from the stay laws, tbis Court can only regard as a valid stay of execution, such undertakings as are entered into in pursuance of those laws.

Neither the magistrate or the parties can he allowed to. change those laws by contract. Any such action,, of the justice does not constitute an official or judicial act, Roberts vs. Cross, 1 Sneed, 233; 4 do., 146-548; Bynum vs. Murrill, 8 Humph., 701.

Reverse the judgment, and let the execution he quashed.  