Lead Opinion
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.
Addendum
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 *Page 165 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,