
    Lownes, Orgill & Co. v. Augustus Hunter.
    1. Stay OR EXECUTION. Justice’s docket. Act of 1835. The fact that the name of the stayor is not written in the most appropriate place on, the justice’s docket, or that the docket is not made out with all the formality prescribed by the act of 1835, will not vitiate the security, or discharge the stayor from his liability.
    2. Same. Irregularities in the judgment. If the judgment upon which a party undertakes to stay execution remains in force, the stayor cannot go behind it in search of irregularities upon which to be discharged from his liability. If the party prejudiced by the supposed irregu-laritj submits to it, it does npt lie in the mouth of the surety for the stay of execution to complain.
    3. CERTIORARI and Supersedbas. Judgment. Interest. Costs. Pro-cedendo. Code 3124, 3138. Prior to the adoption of the Code, the practice, upon dismissing a petition for' a writ of supersedeas, was to discharge the supersedeas and award a procedendo to the justice to issue execution. But, by the proper construction of \\ 3124, 3138 of the Code, judgment is to be rendered in the higher Court for the amount of the justice’s judgment with interest thereon, at the rate of twelve and one-half per cent, per annum against the principal and sureties in the certiorari bond, and also for costs of suit.
    EKOM hatwood.
    At- tbe September Term, 1858, the execution issued by the justice was quashed, Read, J., presiding. The plaintiffs appealed.
    E. J. Read, for the plaintiffs,
    cited: Atkinson v. Rhea, 7 Hum., 59; Roberts v. Cross, 1 Sneed, 233; Carmichael v. Hawkins, 2 Sneed, 405; Hennegar v. Mee, 4 Sneed, 33; Newman y. Rogers, 9 Hum., 121; Winches
      
      ter v. Beardin, 10 Hum., 247; Johnson v. Billingsley, 3 Hum., 152.
    B. J. Lea, for the defendant,
    said:
    The defendant contends that he is not liable as ' stayor:
    1. Because the judgment rendered by the justice of the peace is void; void because the summons which was issued the 26th day of May, 1857, against “ E. R. Mid-yett and J. L. Henry, late partners under the firm and name of Midyett & Henry,” was only executed, as will appear by reference to the record, upon J. L. Henry, and returned before W. Saryster, who gave judgment against Midyett & Henry; the said Midyett never having been summoned to appear, nor did he appear; and, therefore? the judgment against Midyett & Henry, was void, and the defendant, Hunter, is not, therefore, liable as stayor.
    Again: The judgment is void by reason of irregularity, as will be seen by the leaf of the docket here exhibited. There is no caption to the docket, nor is it in any way, shape, or form, a compliance with the 17th section of the act of 1835, ch. 17. (N. & C., 435.) In the case of Johnson v. Billingsley, 3 Hum., 151, this Court say, that a substantial compliance with the act of 1835, is sufficient; but, as will be seen, the judgment is not only irregular, but the entry upon the docket is in no manner an approach to the form given in the act of 1835,
    2. There is nothing on the docket to show that the defendant, Hunter, ever was stayor to said judgment; and it is contended that his name must be in the column where stayors are entered, or the word stayor opposite ,to his name, or, in other words, the docket must show that he is stayor.
    In view of these facts, we contend that there was no error in the ruling of the Court below, in quashing the execution as to defendant.
   McKinney, J.,

delivered the opinion of the Court.

In quashing the execution, on the ground that Hunter was not legally hound as stayor, we think the Court erred. The case is within the principle of Carmichael v. Hawkins, 2 Sneed, 405. It is fully proved, that Hunter voluntarily applied to the justice to become stayor of the execution in this particular case, and accordingly wrote his name on the justice’s docket, with the express intent of binding himself as surety for the stay of execution, and was accepted by the justice as such. The fact that the name was not written in the most appropriate place on the docket; or that, the justice’s docket was not made- out with all the formality prescribed by the act of 1835, will not be allowed to vitiate the security, or discharge the stayor from the liability, on the ground of the supposed irregularity in the judgment upon which he assumed to stay execution. Admitting it to be true, that the warrant was served on only one of the two joint defendants named therein and that the judgment was rendered jointly against both; this is a matter of which the party not served with process might complain; or, he might waive service of the warrant, and acquiesce in the judgment, as he seems to have done. But this is a matter with which the stayor has no concern. The judgment upon which he undertook to stay execution remains in full force, and he cannot go behind it in search of irregularities upon which to seek to be discharged from his liability. If the party prejudiced by the supposed irregularity, submits to it, it does not lie in the mouth of the surety for the stay of execution to complain.

. In this view of the case, the judgment must be reversed. Prior to the adoption of the Code, the practice in such cases was, to discharge the supersedeas, and direct a procedendo to the justice to issue execution. But, by the proper construction of sections 3124 and 3138 of the Code, judgment is to be rendered here for the amount of the justice’s judgment, with interest thereon, at the rate of twelve and one-half per cent, per annum, against the principal and sureties in the certiorari bond; and also for the costs of suit. Judgment will be rendered accordingly. ,-  