
    Davis and Cocke vs. Tyree.
    The staying of a judgment, is a judicial act, which can alone be done by the justice; and the authority to enter the names of persons as stayors is in the nature of a confession of judgment, which must be received and entered by the justice.
    An execution was issued against Cocke and Davis, by a justice of the peace in Sumner county. The case was removed to the Circuit Court by certiorari. It was then tried by a jury under the direction of Judge Dillahunty and verdict and judgment rendered for the plaintiff. The defendants appealed.
    
      Guild, for the plaintiffs in error.
    The act of staying a judgment is in the nature of a confession. Frost vs. Rucker and Payne, 4 Hum. 57.
    The securities in the stay of an execution, which stay. was unauthorized and void by law, are not bound. Patrick vs. Drishill. 7 Yer., 140.
    To bind the security for the stay of execution, he should appear before the justice of the peace and make the acknowledgment, or he shall give written authority to some one who will do it for him. 7 Yer., 140.
    It must be done within the time the judgment is within his control. Ib.
    A verbal statement to the justice to enter his name as stayor of judgment, and it is so done by the justice, he is not bound. Gaper ton vs. Gray, 4 Yer., 560; Hickman vs. Lewis, M. and Y., 118.
    
      Baldridge, for the defendant in error.
    The court charged the jury, that the signatures by plaintiffs in error as stayors would not bind them, unless they were accepted by the justice. But that the justice might accept them at any time before he issued execution, with the assent of plaintiff, provided the jury believed they signed their names as stayors within eight months from the judgment, and provided they believed that the justice did accept them: and this they had a right to infer from his acts. The jury found both these facts against plaintiffs in error.
    And it is contended for the defendant in error, that the charge of the court is correct; that it is sustained by the act of 1842, chap. 136, sec. 4, see Nich. Sup., 278.
    It is provided by this act, that a stay may be received at any time before the judgment is paid or execution is issued, with the assent of the plaintiff.
    The jury had the right to look to the acts of the justice as evidence of his reception of the stay. The issuance of the sci. fa. and execution showed to the satisfaction of the jury, that he did accept them, and the justice himself proved them good for the stay; and although the justice said he never did ac'cept them, the jury believed and so found that this alluded to a previous time, viz., before the issuance of the sci. fa., as they had a right to do, and having so found upon evidence, this court will not now, disturb their verdict.
    The court also charged the jury that they must believe that the stayors signed the same with a knowledge of the judgment within eight months from its rendition, which fact they also found from the evidence in the cause.
   Turley, J.

delivered the opinion of the court.

The' facts of this case, as they appear from the record, are as follows :—

On the 7th day of December," 1846, G. T. Brown, a justice of the peace, for the 14th district, in the county of Sumner, issued a warrant in favor of R. C. Tyree, against one F. L. McDaniel, for the sum of one hundred dollars. This warrant was exhibited by said McDaniel to the justice for his signature, and on it were the following endorsements:—

“ I acknowledge service of the within warrant, December 9, 1846. F. L. McDaniel.”

“ Judgment confessed by the defendant to the plaintiff for one hundred dollars, debt and all legal costs, given sunder my hand and seal, December 7, 1846.

G. T. Brown, J. P.”

This confession of judgment was entered by the defendant in the warrant, F. L. McDaniel, and signed by the justice; after which the warrant, with these endorsements, was handed by him to McDaniel, and the same was never returned to the justice till the 8th day of December, 1847, twelve months after the issuance of the warrant and the 'confession of the judgment; then the constable handed it ¡to him to issue a scire facias to renew the judgment.

Brown, the justice, expressly proves, that he never did receive or accept the plaintiffs in error, Davis and Cocke, as stayors of the said confessed judgment: but that when the constable returned the warrant, and the confessed judgment thereon, for the issuance of the scire facias, the names of Cocke and Davis were on the back of the warrant as stayors, but when put there or by whom he does not know.

Upon this, Brown, the justice of the peace', after issuing a scire facias against McDaniel, Cock, and Davis, to show cause why an execution should not be issued against them upon the judgment confessed before him, by McDaniel, in favor of R. C. Tyree, for one hundred dollars, on the 7th day of December, 1846, issued a joint execution against them for the amount, and Davis and Cocke superseded it, upon the ground that they did not stay said judgment.

And it is very obvious that they did not. No one but the justice, before whom the judgment was confessed, had legal authority to stay it, by entering the names of Davis and Cocke as stayors thereto; this he swears he never did, and that he does not know who did, nor when it was done. The issuing the scire facias to renew the judgment was a nullity, and Davis and Cocke are not estopped by the proceedings thereon. In fact, the justice says, he did give no judgment of renewal upon the return of the scire facias, but that he had it in his mind to do so, and thereupon issued the execution which is superseded.

Davis and Cocke are not legally parties to this judgment, and execution against them is illegal, and ought to have been quashed by the Circuit Court; in not doing this his Honor, the judge, erred, and his judgment must be reversed, and the execution quashed, as to Davis and Cocke, with cost.  