#### DEN ON DEMISE OF S. FLEMMING *vs.*BASIL DAYTON.

A judgment confessed by a third person, to satisfy a fine and costs imposed on one convicted of an offence, is regular and proper.

But an execution upon such a judgment can only issue against the person, who has confessed the judgment, and not against him, jointly with the person against whom the fine and costs were awarded, and an execution issuing against them jointly is void, and a sale under it conveys no title to the purchaser.

The cases of the *State*v. *Lane,*1 Ire. 264, *State*v. *Johnson,*1 Hay 293*Dolson*v. *Murphy,*I Dev. &. Bat. Rep. 566, *Blanchard*v. *Blanchard, 3*Ire. 105, *Gollais*v. *McLeod,*8 Ire. Rep. 221, cited and approved.

Appeal from the Superior Court of Law of Yancey County, Spring Term, 1846, his Honor Judge Pearson presiding.

This was an action of ejectment for a tract of land sold under two executions against the defendant and one Alfred Keith, and purchased *by*the plaintiff’s lessor. On the trial it was admitted that the defendant was in possession of the land sued for, and the lessor rested his case, after shewing the judgments, executions and sheriff’s deed to himself. The judgments appeared to have been con*454fessed by the defendant, Dayton, for the fine and costs of two indictments against Alfred Keith, in which he was convicted and sentenced to pay a fine of five dollars and the costs in each case, and for which he was ordered into custody until they should be paid. The executions we're issued jointly against both Keith, and the present defendant Dayton.

The defendant’s counsel contended, that the judgments confessed by him were irregular and void, because he was not brought into Court by any process, but if that were not so, the judgments were several, and the executions being joint against both Keith and Dayton, did not conform to them, and consequently the sheriff’s sale under the executions was void and did not convey any title to the purchaser. The presiding Judge was of opinion, that the latter objection was good, and the lessor of the plaintiff thereupon submitted to a judgment of nonsuit, and appealed to this Court.

*Avery and N. W. Woodfin,*for the plaintiff.

*Gaither,*for the defendant.

Battle. J.

The judgments confessed by the *present*defendant Dayton, although there was no process to bring him into Court, were regular and proper. *State*v. *Lane,*1. Ired. Rep. 264. But they were not connected with those against Keith, so as to make them joint against both. They were indeed given and accepted by fhe State, as a payment of those against Keith, for which he was ordered into custody until the fine and costs, which were adjudged against him, should be paid. Pie could be discharged by the consent of the State, by payment of the judgments or by taking the oath for the relief of insolvents. *State*v. *Johnson,*1 Hay. Rep. 293. The State, by its proper officer agreed to accept the judgments confessed by Dayton, as a payment or satisfaction of those against Keith, in order that he might be discharged from *455custody. They were judgments against Dayton alone, and the executions issued upon them should have been against him only. Not having been so, the executions were irregular and void and the purchaser of the land sold under them acquired no title by his purchase. *Dobson*v. *Murphy,*1 Dev. & Bat. Rep. 586. *Blanchard*v. *Blanchard,*3 Ired. Rep. 105. *Collins*v. *McLeod,*decided at the late June Term of this court in Raleigh.

The judgment must be affirmed.

Pee Cukiam. Judgment affirmed