#### BARBE CARROLL vs. WILLIAM K. McGEE.

December 1842.

Where an appeal is taken from the judgment of a justice of the peace, and is reversed in the County Court, but on appeal to the Superior Court is there affirmed, the surety for the appeal from the justice is still bound.

A surety for an appeal from a justice, can only be bound, according to an act of Assembly, when he subscribes his name *himself,*a subscription by another, in his presence, and at his request, is not sufficient— hut when he holds the pen, and another guides it, to sign his name, this is a signature by himself.

Judicial proceedings before a justice of the peace, are conclusive in their *effects*— but they do not *prove themselves,*like records — parol evidence may he introduced to prove that they are void.

A surety who signs an appeal from the judgment of a justice will he bound, although the appeal is taken after the time allowed *by*the act of Assembly for taking an appeal, provided the opposite party consents that the appeal may be then taken.

The eases of *Hamilton*v *Wright,*4 Hawks, 283 ; arid *Wardens of the Poor*v *Cope,*2 Ired. 44; and *Dolby*v *Jones,*2 Dev. 109, cited and approved.

*14An appeal from the Superior Court of Law, of Cherokee 0ounEVi at Spring Term 1842, his Honor Judge Bailey presiding. The action commenced before a Justice of the ^*eace> and, *on*a judgment being rendered against the defendant, he appealed to the County Court. The plaintiff was there nonsuited, and appealed to the Superior Court, in which latter Court, a verdict and judgment were rendered for the plaintiff. A motion was then made by the plaintiff’s attorney, for judgment against the surety, for the appeal from the justice of the peace. On this motion, it was proved by the justice, who granted the appeal, that the appeal was prayed at the time of trial, but the defendant, being unprepared with surety, did not then give it. The ten days, allowed by the Act of Assembly for an appeal, had elapsed before be saw the surety. The plaintiff and defendant both being present, it was agreed that the appeal might go up. The surety then directed the justice to put his name as surety for him, and held the top of the pen while it was done. It was then attested by the justice of the peace, in the presence of the surety and of the parties. Upon this state of facts, the Judge refused to give a judgment againt the surety, and the plaintiff appealed to the Supreme Court.

Clingman, for the plaintiff,

objected that parol evidence should not have been received to shew ivhen the appeal was granted, this proceeding being in the nature of a record. *Bain*v *Hunt,*3 Hawks, 572.

As to the liability of a surety on an appeal from a magistrate, he cited, *Dolby*v Jones, 2 Dev. 109. He contended that the taking of the appeal within ten days, was not requisite to give the court jurisdiction, and enable it to pronounce judgment. Rev. Stat. c. 62, s. 25 — that the appeal cannot be dismissed for irregularity after a *verdict*— Smith v *Neale,*2 Hawks, 14 — and that the surety has no control over the appeal. *McGimpsie*v *Tail,*Í Mur. 408.

Francis, for *defendant*— contra.

GastoN, J.

Three objections appear to have been made by tho defendant, to the prayer oí the plaintiff for a judg-*15meat against him. ' lie insisted, first, that, as his principal succeeded in the County Court in reversing the rendered by the magistrate, the defendants liability as surety for the appeal, was at an end ; secondly, that he did not “ subscribe” the engagement to be surety for the appeal, as required by the act of 1794, (Rev. St. c. 62, s. 23:) and thirdly, that the engagement having been taken by the magistrate after the expiration of the ten days, allowed by that act for granting an appeal, it was taken *car am*nonjúdice, and was therefore null.

The first objection was clearly untenable. The case of *Dolby v Jones, 2*Dev. 109, is decisive, that the surety for an appeal from the judgment of a magistrate, is surety to the action, and is bound to satisfy the judgment, which may be finally rendered therein against the appellant.

In answer to the second and third directions, it has been here urged that they ought not to have been entertained, for that the certified proceedings of the magistrate are in the nature of a record, and that evidence cannot be received to contradict them. We are not satisfied with tiiis answer.- — .

The extrinsic evidence was not offered to impeach *th& force*of the acknowledgment, made by the defendant as surety for the appeal, but to shew that such acknowledgment was *not made*with the formalities required by law, or was made before one who had not jurisdiction to take it, and therefore was not in truth what it purported to be. The judicial proceedings before magistrates, do certainly resemble records in the conclusiveness of their *effect,*but they differ from records' in this, that they do not conclusively *prove themselves.*— - Thus it may be shewn, that a judgment which purports to have been rendered in a county, where a magistrate has jurisdiction, was in fact rendered out of his county. *Hamilton v Wright*& *Parish,*4 Hawks, 283.

But while we hold the evidence to have been admissable, we agree with the counsel for the plaintiff, that the matters thereby shewn, constituted no defence against the plaintiff’s prayer. The act of 1794 does indeed require, that the surety for the appeal shall himself subscribe the acknowledgment *16before the magistrate, and this requisition would not, in our have been complied with, if the witness’ name had been subscribed by another in his presence, or by his direc-^011, ®ut in this case, the subscription was made by *himself.*He actually held the pen while the signature was written, and it was not the less *his*subscription, because he had the aid of the magistrate in making it. It is true also, that the act of 1794, limits the time, within which a defendant may demand an appeal from the judgment of a magistrate, to ten days after the judgment shall have been rendered, but we cannot doubt that, with the consent of the parties, the appeal may be taken after the expiration of the limited time. No consent can give *jurisdiction*where the law withholds it, but consent may enlarge the time, within which a legal privilege can be exercised'. *Wardens of the Poor*v *Cope,*2nd Iredell, 44.

' We are of opinion, that the judgment below is erroneous, and ought to be reversed, and that the plaintiff is entitled to have judgment, as prayed for against the defendant, and to recover the costs of this appeal.

Per Curiam. Judgment accordingly.