
    William Humphreys v. John R. Buie.
    From Richmond.
    Debt and not Assumpsit, i's'the proper remedy against the stayor of execution, when the judgment is dormant, and it lies against him without joining the principal.
    Whether the seal of the justice is necessary to a valid judgment, Q,u ? but the want of it, as an objection, is too late after verdict. ■
    The Defendant was warranted in debt, as surety for the stay of execution on a judgment against one Neill Bide. After a verdict for the Plaintiff, the Defendant moved in arrest of judgment for the following reasons :
    1st. Because debt would not lie against a surety for the stay of execution.
    2d. Because of the non joinder of Neill Bide.
    
    3d. Because neither the original warrant or the judgment thereon, or the stay of execution, were under the sea! of the Justice.
    His Honor Judge Norwood, arrested the judgment, and the Plaintiff appealed.
    
      Nash, for the Plaintiff, was stopped by the Court.'— No Counsel appeared for the Defendant.
   Hah, Judge.

The first reason for arresting'thejudgment is, that debt will not lie upon the Defendant’s liability, as surely for the stay of the execution. Such' suretyship is tantamount to a judgment, because execution may issue upon it against the surety, and he is as much bound as the principal, and for Unit reason assump-sit will not lie against either,, in case the judgment became dormant, (Bain v. Hunt, 3 Hawks 572.)

The second objection is, that debt will not lie against the surety, without joining the principal in the action with him.

Laying aside any construction of the act of 1789 (Rev. ch. 314) which in its spirit tends to the severance of contracts, it’is to be observed, that in the present case, there was not a judgment against two, but a judgment against one, and a liability of another for the same debt as surety. They were botli bound, but not eodem modo. I therefore think, that an action may be brought againsteither.

The third reason for arresting the judgment, is, that the Justice’s seal was not affixed to the warrant, judgment or stay, of execution, upon which the action is brought. Whatever force there might have been in this objection, if taken at an earlier stage.of the proceedings, it is sufficient now to say that it comes too'late. it would be against the order of pleading, and very inconvenient, to suffer an objection to the evidence to prevail, after a case lias been heard, and decided upon its merits. The reasons in arrest of judgment must be overruled and judgment entered for the Plaintiff.

Per Curiam.-the Plaintiff. -Judgment reversed and judgment for  