
    Thomas Hickman vs. Lewis Williams.
    The stay of an execution, upon a judgment rendered by a justice of the peace is in the nature of a judgment confessed by the security for the stay, and to bind him, he must be present when the justice officially enters his name as se. curity, or must sign his own name as such. If he be not present, a written authority to the justice, or some other person, to enter him as security, is necessary.
    Williams, the defendant in error,
    obtained a judgment against Roger B. Sappington, for 31 dollars, and costs of suit, on the 8th day of October, 1824, before a justice of the peace. The execution upon the judgment was staid (as Williams alleges,) by Hickman, and a fieri facias issued on the 11th of January, 1825, founded on said judgment and stay, and was about to be levied on Hickman’s property. He applied to the county court for a certiorari and superse-deas, which were awarded him, and the cause removed to that court for trial. A verdict and judgment were obtained against him in that court, from which he appealed to the circuit court; and at the May term, 1826, of that.court, a trial was had, and a verdict and judgment again obtained by Williams, from which Hickman prosecuted an appeal in error to this court.
    The bill of exceptions, taken at the trial, presents the following state of facts: The warrant against Sappington, was made returnable before Jonathan Drake, Esq. (the justice who rendered the judgment against Sappington,) at his house, about five miles from Nashville. The justice was in Nashville the same day on which he entered up the judgment against Sappington, and there met with Sapping-ion and Hickman; they both told him, that Hickman would he Sappington’s security for the stay of execution. Hickman told the justice, that he would stay the execution for Sappington, and directed him to put his name down as security for the stay — which the justice, on his return home? accordingly did, on the same day. The authority given by Hickman to the justice, was verbal; and Hickman was not present, cither when the judgment was rendered against Sappington, nor when the justice signed his name, as security for the stay of execution. The reason assigned by the justice, why he did not require a written authority from Hickman, was because he (Hickman) was then on his way to Carthage.
    The court charged the jury, “that no deed, or other instrument of writing, from Hickman to the justice, were necessary, to authorize him to stay the execution in Hickman’s name. That if the jury believed that Hickman authorized the justice of the peace, verbally, to set his name down as security, for the stay of execution, and the justice afterwards did set it down, Hickman would be bound by it, although he (Hickman) was not present at the time the judgment was rendered, and his name put down as security for the stay; that a justice’s court was always open, and that this was something in the nature of a confession of judgment by Hickman, and would bind him.”
    
      Rucks and O. S. Yerger for the plaintiff in error,
    contended, that under the acts of assembly; staying an execution, was equivalent to confessing a judgment; and to bind Hickman,he must have been present when his name was entered as security, or at least a written authority to the justice, in his absence, was necessary. They cited the different-acts of assembly, authorizing a stay of execution. (Corny rds Digest Attorney, B. 8, note JV. and C. 5; 7 John. Rep. 18; 6 ditto 126.
    
      Bell, contra,
    
    insisted a justice’s court was always open, and an acknowledgment, or authority given to him, at any time or place, in relation to business of an official nature, was obligatory.
   Catron, J.

delivered the opinion of the court. Sapping-ton was warranted by Williams, and brought before a justice of the peace, and judgment was recovered against him for thirty-one dollars. The day upon which the judgment was recovered, Sappington and Hickman met the justice in town, five miles from where the justice lived, and where he had rendered the judgment, and where the papers were. ■H-;fqfTnaTI t0M the justice to enter his name as security for the stay; which the justice, when he went home, did on the same day. The only question is, whether Hickman is bound by this, and liable for the debt?

The stay of an execution, by our acts of assembly, can only be lawfully granted to the defendant, upon his giving security for the debt and costs; and if the money is not paid at the expiration of the stay, execution can immediately issue, against both the principal and his security, for the stay. This securityship, in effect, is in fact the confession of a judgment before the justice. Such judgment, in a court of record, could only be confessed in open court, by the party against whom the judgment is rendered in person, or by his lawfully authorized attorney.

We apprehend the only safe and correct practice, in staying executions upon judgments rendered before justices of the peace, to be, that the justice shall require the party, about to become security for the debt, to sign his own name to the acknowledgment, by himself, or his legally constituted attorney; or by directing the justice, in writing, to do so; or that the justice enter the acknowledgment of the secu-rityship for the stay, in the presence of the party becoming security — and that the record of the judgment, upon which execution is stayed, be also present when such entry is made.

The justice, in this case, would have taken Hickman’s acknowledgment in writing, but it was inconvenient, &c. If the acknowledgment had been in writing, signed by Hickman, specifying the parties, date and amount of the judgment, the execution of which he was about to stay, there would probably have been no objection to the regularity of the proceeding. This, however, was not done; — 1 Hickman never read, or heard read, the judgment; nor was the entry, by which he was to become security for the stay, made in his presence. We are, therefore, all of opinion, that he is not bound, and that the judgment of the circuit court must be reversed, and the cause remanded to that court, for further proceedings therein to be had.

Judgment reversed.  