Opinion
June Term, 1828.
From Granville.
1. A justice's judgment must be evidenced by a written memorial, made at the time of its rendition.
2. Therefore, when a judgment was confessed before a magistrate out of his county, and entry thereof made on the warrant, and afterwards a new confession was had before the justice at a subsequent time within his county, but no written entry thereof made, and no alteration of the date of the old entry, it was held that there was in law no judgment.
3. One who enters himself as surety for the stay of execution before a justice is not thereby estopped to show that the supposed judgment is in law a nullity.
THIS action was originally commenced before a justice of the peace. On the trial the plaintiff produced a judgment in his favor confessed by one Gideon Wright, dated 12 October, 1821, which was stayed by the defendant, but there was no date of the time when the stay was entered. The defendant then proved by the justice before whom the judgment was confessed that it was given in Franklin; he, the witness, being a justice in Granville. Vide Hamilton v. Wright, 11 N.C. 282. The witness further proved that he retained the judgment in his custody, under an agreement between the plaintiff and Wright, in order to enable the latter to give surety for the stay; (416) and that in November, after the date of the judgment, Wright came to him within the county of Granville, accompanied by the defendant, when the judgment was produced, the stay written in the presence and with the assent of both parties, signed by the defendant, and attested by the witness. The plaintiff then offered to prove that Wright had at this time again confessed the judgment. But his Honor, Judge Strange, being of opinion that in order to render a judgment valid as a judicial act of the justice it must be reduced to writing at the time of the act, refused to receive the evidence unless the confession had been judicially passed upon by the justice at the time it was made. The counsel for the plaintiff then requested the judge to instruct the jury that if from the facts they could infer that a judgment had been confessed in Granville County by Wright, they were at liberty to do so. But his Honor charged the jury that if they believed the witness, there was no judgment against Wright, the act of a justice performed out of the limits of his county being a perfect nullity, and as the defendant was only bound for the stay of execution on that judgment, as the principal debtor was not liable, neither was the defendant. In submission to this charge the plaintiff suffered a nonsuit and appealed to this Court.
Nash and Badger for the plaintiff.
W. H. Haywood for the defendant.
When the plaintiff offered to prove that Wright again confessed judgment, I understand that that confession was intended to be evidenced by the same judgment which the justice proved to have been confessed before him on 12 October, 1821, in the county of Franklin. That judgment is no evidence of a judgment confessed by Wright subsequently. When he offered the defendant as surety to stay it, if the date of the judgment had been altered to the day when surety (417) was offered for the stay, it would have been proper to receive it. But as the judgment stands, it purports to be a judgment confessed at one time, and cannot be evidence of a judgment confessed at another.
There are other reasons why it should not be so considered. There is no date fixing the time when the defendant became a surety; but there is a date to the judgment confessed. It would follow that the time for which the judgment was stayed would be made to commence in fact before the surety for the stay was given, and interest might be charged upon the judgment from the same time.
I think for these reasons the rule for a new trial should be discharged.
In looking at the several acts relative to the jurisdiction of justices, it seems clear that the liability of the principal and the security for a stay of the execution is the same, and that in no case where the principal is not bound by the judgment can the surety be made liable. The party praying the stay shall, if required, give sufficient security, and the acknowledgement of such security, entered by the justice and signed by the party, shall be sufficient to bind him; and if the judgment shall not be discharged at the time to which the execution was stayed, then it shall be lawful for the justice, who has possession of the judgment, to issue execution as aforesaid against the principal and securities. Act of 1794, ch. 414. The security undertakes equally with the principal to pay the amount of the judgment, and its existence is not less essential to charge him than to charge the principal; it is all along presupposed in the act. It is clear that the indorsement on the warrant purporting to be a confession of judgment by Wright and signed by the justice was a nullity, as being transacted by the latter out of his county; and I think it follows that no obligation to pay it was incurred by the security (418) undertaking to stay it, and that it was a valid defense for him on the trial of the cause. The parol evidence offered to prove a subsequent confession of judgment in the county was properly rejected, for the law requires some written evidence of a proceeding on which the justice might issue execution at the expiration of the stay. The giving judgment by the justice, ex vi termini, imports that he shall make a written memorial of it, that it may be appealed from or stayed, and protect the defendant from the same demand. It would be extremely dangerous to admit the doctrine that while the warrant was in existence, on which there was no judgment, the justice should yet be allowed to prove it by parol. My opinion further is that whether there was a judgment or not was a proper question for the decision of the court, and that the evidence of a judgment against Wright was an indispensable ground for the plaintiff's claim against the surety. The judgment ought therefore to be affirmed.
PER CURIAM. Judgment affirmed.
(419)