Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-13
Higgs vs.. Landrum and others

This was an application on the part of the defend
ant Jenkins to quash these several executions ISSUED
by justice of the peace, against him as stayOr
jointly with the principals in the judgments.
The motion to quash was made absolute, and this
it is alleged, is erroneous.
On the 18th of February 1859, these several
judgments, each for the sum of S4S5 05 were rem
dered by justice of Weakly county in favor of the
plaintiff Martha u. Hggs, as assignee of George K
Brasfeld, the pages against Williams and Samuel
Landrums, the makers, and Brasfeld, the assgnor
jointly.
Upon the justices docket, the cases are severally
stated thus Martha b. Higgs, assignee, VS.. Will
lams Landrum Samuel Landrum, and George r.
Brasield, assignor." In the proper column Of the
docket, under the head of StdyOr" the name of W.
H. Jenkins the defendant, is entered as stayor OPP
pOsite each of the judgments. The justices docket
does not show whether Jenkins was entered as
stayOr for all the defendants, only for the Ian
drums The judgments were rendered by confess
fession of all the parties the assignOr well the
makers of the notes. The written authority to the
Justice from the Jenkins stayor of execution
upon these judgments against the Landrums, the
name of Brasield is not nentoned IN all other re-
spects the judgments are minutey and accurately
described.
Upon the expiration of the stay executions were
issued and levied upon the property OF Jenkins, the
stayor passing by the assignor, Brasheid, the Lam
drums having in the meantime, become lnsolyent
For Jenkins, the stsyor, it is assumed that mas
much the order of liability Of the parties to the
Judgment is not stated, either in the Judgment or
execution, they are all equally Eable-the assgnor,
Brasfeld, as well as the makers of the notes. and
that all must be proceeded against, and the property
of all be exhausted before proceeding against the
stayor; aHd the Court so held In this the Court
erred.
This case is not governed by the provisions OF the
Code referred to, (Sec. 8027 TO 303l nclusve) but
by the provisions of sections 1878 and $685. which
IN substance, provide that where a surety or en-
dorser is Jointly sued with the principal, and exc
cutOn is stayed at the instance of the principal,
without the request consent of the surety or
dorser, the stayor shall be liable in default of the
principal to pay the judgment and costs and the
first surety or endOrser shall be exonerated unless
the principal debtor and stayor shall both become
insOlvent or unless the first surety or endorser
specially joined with the principal debtor in pro
curing the stay.
The only point of difficulty Is as TO the matter of
fact, whether jenkins became stayor at the instance
of the Landrums alone, without the request or as
sent of Brasfied or otherwise The proof offered
to show that Brasfeld probably did not Join with the
Landrums IN procuring the stay was rejected by
the Court Nevertheless, we think 1t may fairly be
presumed from the face of the instrument executed
b. jenkins and addressed to the justice as an author
for entering the of the former as stayor that
he intended only to be the surety of the Landrums
for the stay of execution Such is the proper con-
structon of the writing; and it is manifest that the
justice so regarded it. and considered the stay of ex
ecutlon for the principal debtors only
by force OF Section 306l of the Code the stay of
execution at the instance of the principal debtor is
wholly imperative as to surety or endOrser unless
the latter assents in proper person. or by writing
signed by him, showing that the stayor is entered as
such at his instance and request.