13 Mich. 502 | Mich. | 1865
Lead Opinion
A judgment having been recovered against one Richardson, before a Justice of the Peace, in a suit commenced May 13, 1858, Crippen, the defendant in this
“I acknowledge myself surety for the payment to the plaintiff, by the defendant, to pay the above judgment, with interest and cost thereon, on. or before the expiration of ten months from the 31st day of May, A. D. 1858, agreeably to law.
“Warren S. Crippen.”
Below this was the following subscription: “I approve of Warren S. Crippen as stay. B. Bennett, J. P.”
The judgment not being paid within the time limited, Cox, the owner thereof, brings this action to recover the amount from the surety. The Circuit Judge .held the undertaking of the surety to be not in accordance with the statute, and therefore void. This ruling presents the only question for our consideration.
The statute authorizing security for stay of execution, to be taken on the docket of the Justice, is the following : “ In all cases where stay of execution is allowed by law, the party entitled thereto shall have stay of execution, by his surety or sureties becoming such security on the docket of the Justice, in substantially the following form: £ I, A. B., hereby acknowledge myself surety for the payment to the plaintiff, by the defendant, of the above judgment, with interest and costs thereon, at or before the expiration of months from the commencement of said suit. Dated this day of , 18 . A. B. Witness, E. W., Justice.’” And such entry shall have the effect of a judgment; and execution may issue thereon in the manner prescribed in this chapter, and an action of assumpsit may be brought thereon.”— Comp. Laws, §3804. A previous section prescribes the period for which the stay shall continue, and requires
'As the section above quoted, does not require that the security entered into shall follow precisely the form given, it must be held sufficient if it is in substance the same, and omits nothing which the statute makes a requisite. The form is given. as a guide simply, for the convenience of the Justice and the parties, to indicate what will be sufficient; and the statute is complied with by any undertaking which embodies the same substancej though the words employed may be different. The form given is exceedingly simple, and embraces only a writing setting forth that the person acknowledges himself surety for the payment of the judgment within the time limited by law, which is dated, signed by the surety, and witnessed by the Justice.
The question which this case presents is, whether the statute is substantially complied with where the Justice has failed to attest the security; and if not, then whether the approval of the security which appears in this case can be regarded as an attestation.
As the form given in the statute includes an attestation, there can be no doubt that, had the terms ’ employed positively required this form to be followed, a security could not be held sufficient which lacked this requisite. But as the statute only requires the adoption of the form in substance, we have only to see whether an attestation answers any substantial purpose; and if it does, we cannot hold that the statute is complied with when this is omitted, any more than if the signature of the surety, or any other substantial requisite, were wanting.
It will be seen, on examination of the statute, that when this undertaking is entered upon the docket in due form, it is somewhat in the nature of a confession, of judgment, and has the force and effect of a judgment without any other form or ceremony whatever. There is
The consequences of a conclusion that the - security need not be witnessed are so serious that we cannot avoid believing the Legislature regarded that act as something more than an idle ceremony. As the entry of the security has the force and effect of a judgment, a Justice might be called upon to issue execution upon an instrument, of the genuineness of which he knew nothing, but where he would be required at his peril to take notice of the real facts, when they might be within the knowledge of a single person only, and that person unknown to him. Not only would the Justice be thus placed in peril, but a false and forged instrument Avould at once, from the simple fact of being placed upon the docket, take up'on itself the semblance of a judgment upon whicli officers would be required to act, so that a party might find his property seized in execution before he was aivare of a claim.
A statute under which such consequences could follow, or Avhich should permit judgment to be taken without the
It remains to be seen whether the approval of the ■security by the Justice, in this case, can be considered, a sufficient attestation within the statute. We do not, •consider any particular form of attestation as essential; -.and if it clearly appeared from the docket, over the*
We are, therefore, of the opinion that the security in this case was not in substantial compliance with the statute, and was void. The judgment of the Circuit Court must be affirmed, with costs.
Dissenting Opinion
dissenting:
I do1 not 'concur with my brethren in this case. I cannot understand that a form prescribed to be substantially followed requires the performance of an act not demanded by express language. I do not think that any substantial requisition of a witness to make surety-ship valid can be created in this manner.