Opinion
June Term, 1821.
Where a magistrate who had rendered a judgment on a warrant, afterwards, at the request of an individual, signed the name of that individual in his absence as security for an appeal, it was held that though the individual might have given authority to another to sign his name, yet that the magistrate was an unfit person for that purpose as he thereby blended the characters of party and judge.
FROM ORANGE. The defendant in this case was charged as the security on a judgment rendered by a magistrate in favor of the plaintiff, and on the trial it appeared from the testimony of the magistrate that a few days after the judgment was rendered the signed the name of the defendant as security, having been requested by the defendant so to do, and witnessed it by his own signature as a magistrate. The court was of opinion that this signature was a signature by the defendant within the meaning of the law, and so instructed the jury, who returned a verdict against the defendant; judgment having been rendered thereon plaintiff appealed.
The act of 1794 requires the acknowledgment of the security to be entered by the justice and signed by the party, but it was here entered and signed by the justice in the absence of the party. The act designed to make this an authentic document equivalent to a confession of judgment since (320) execution issues upon it without further notice. Whatever authority the party may communicate to another by a proper power the justice is an unfit organ for its exercise in thereby blending the two functions of party and judge. There must be a new trial.
Laws 1794, ch. 13, sec. 1, declares that when any defendant prays a stay of execution upon a judgment obtained before a justice, he shall, if required, give sufficient security, and the acknowledgment of such security entered by the justice and signed by the party shall be sufficient to bind him; the acknowledgment alone was not sufficient, and the justice had no right or authority to sign for him; it was his duty to take security, and if a third person had been directed to sign for the security he must have had a written authority for that purpose. I think the rule for a new trial should be absolute.
Cited: Brickman v. Williams, 32 N.C. 127.