
    Patrick vs. Driskill.
    Where the party who stays an execution is not present when the judgment is rendered, an authority in writing is necessary to bind him.
    A stay of execution can only be allowed within the time the judgment is under the justice’s control; therefore, a stay of execution after the time had expired within which an appeal could be prayed is void, and the securities in the stay of execution are not bound.
    James Dixon executed to John It. Patrick & Co. a note for seventy-eight dollars and thirty-two cents, dated 12th May, 1831, and due one day after date. On the 11th June, 1831, Dixon was warranted on said note, and the warrant returned before Jacob Vanzant, a justice of the peace for Franklin county, and on the 18th of said month a judgment was rendered by said justice upon said note for the amount thereof and interest.
    On the 25th of June, 1831, John Driskill wrote the following order or power to the justice:
    “Jacob Yanzant, Esq. — Sir,-I hereby authorize you to sign my name as stay to one judgment in favor of John R. Patrick & Co. against James Dixon, in and about seventy dollars. June 25th, 1831.”
    (Signed) “John Driskill.”
    In pursuance of this power, Jacob Yanzant wrote upon his judgment book or docket, and as applicable to the judgment against Dixon, the words “stayed by order of John Driskiii.” Esquire Vanzant proved that there were bdt two judgments obtained before him in behalf of John R. Patrick & Co. against James Dixon, one for eight dollars debt and fifty cents costs, and the other for seventy-eight dollars and thirty-two cents debt, with interest, &c. and fifty cent's costs, so that the order of Driskiii was to stay the judgment for seventy-eight dollars and thirty-two cents and costs.
    A verdict and judgment were rendered for Driskiii in the circuit court, and an appeal in the nature of a writ of error prosecuted to this court.
    
      J. Campbell, for the plaintiff- in error.
    
      J\l. Taul, for the defendant in error.
   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.  