Opinion
December Term, 1823.
On an appeal from a justice's judgment the surety to the appeal is not bound, though he sign as such, unless the magistrate granting the appeal sign his name as a witness to the signature of surety.
SCI. FA., issued from BERTIE to the defendant as administratrix of one Asa Hardison, who was security of Rachel Hare in an appeal granted on a judgment rendered by a magistrate, against Rachel Hare, in favor of the present plaintiff.
The warrant was in the usual form, and on it were indorsements as follows, viz.:
Judgment against the defendant for twenty pounds, with lawful costs, this 19 January, 1811. EZEKIEL HARDISON.
The defendant craves an appeal; granted by giving for security ASA HARDISON.
To the sci. fa. the defendant appeared and pleaded "nul tiel record." It appeared in the court below, from the testimony of Ezekiel Hardison that as a magistrate he gave the judgment indorsed on the (533) warrant on 19 January, 1811; that the defendant craved an appeal, which he granted on her offering Asa Hardison as surety; that Asa Hardison did not on that day sign the indorsement on the warrant, though he said he would be defendant's surety, but on the next day he did sign in the presence of the witness.
Another question was presented by the record which it is unnecessary to state, as the Court did not consider it.
This case depends upon Laws 1794, ch. 414, sec. 17, the words of which are: "That in all cases where appeals shall be granted from the judgment of a justice, the acknowledgment of the security, and subscribed with his or her proper handwriting, attested by the justice, shall be sufficient to bind the security to abide by and perform the judgment of the Court." The literal meaning of the word attest ( testor ad) is to witness, and in that sense it would be sufficient for the justice to be present when the surety signed. But that is not the sense in which it is used generally by the Legislature, nor indeed by law writers; but to contradistinguish a witness, whose name must be signed, from one who may simply be called upon to prove the transaction without having signed the evidence; of this a strong instance is furnished by two of the acts concerning wills. In one they speak of "subscribing witnesses," 1 Rev. Code, 471, sec. 11; and in a subsequent reference to that expression they speak of it as meaning "attesting witnesses," 1 Rev. Code, 511, sec. 5; plainly denoting that they used them as convertible terms. The witnesses to a will are called attesting witnesses, because they must put their names to it, and it is the way in which the books generally express such witnesses as must sign any instrument.
The act designed to make the mode by which the surety was (534) bound an official, authentic act, which might be proved by an inspection of the justice's signature, which would probably be known by some one on the bench when judgment was moved for, and thus to guard against the risk of charging persons who had not in fact signed as surety. As a judgment may be entered upon motion, without any notice to the surety, it was a necessary provision that the fact of his being so should be verified beyond a doubt, and fraud and perjury prevented as effectually as possible. A man who becomes surety for an appeal is not to be presumed to render himself liable upon any other terms than those the law has prescribed, viz., that the magistrate shall attest his signature, for the next step would be to charge a man who had not signed his name upon the magistrate's proving that he had become surety. The law must receive such a construction as will impose upon the justice a strict execution of the power intrusted to him before a man can be rendered responsible as a surety in a summary way. Where a power was created to be executed by trustees, with the consent of the cestuis que trustent, certified by writing under hands and seals, attested by two or more credible witnesses, but the attestation expressed only that the deed had been sealed and delivered by the cestuis que trustent, and the other parties, in the presence of the subscribing witness, it was held that the power had not been duly executed. 4 Taunt., 214. And taking it, in this case, that to "attest" means to sign the paper as well as to witness, the justice has not well executed the power, and the defendant is not liable.
An opinion on this point renders unnecessary the consideration of another question presented by the record. The defendant was surety on the appeal to the county court, where the appellant prevailed, and then the original plaintiff appealed to the Superior Court, and (535) prevailed. Is the first surety (supposing the law to have been complied with) liable? On this I give no opinion.
HALL and HENDERSON, JJ., concurred.
PER CURIAM. Reversed.