Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-05-11
tOFFiUIAL.J
SUPREME COURT DECISIONS.
Nashville, December Term, 1861
Thomas HI. COIdWelI, Attorney
General and Reporter.
wiIliam.F. Smith We. Alexander Martin.

L
William.F F. Smith vs.. Alexander Martin
In this case the plaintiff in error, Smith
filed his petition for writs of certiorar
and supersedeas, alleging that an execu
ton had been issued against him as stayol
upon a judgment rendered by a Justice OF
the Peace against William and Isham
Jennings, and insists that he is not bound
as stayor to said judgment, and that il
would be unjust for him to be forced to
pay the same.
The question whether he stayed the
| judgment was submitted to jury, who
found that he stayed the judgment, and
the court thereupon ordered procedendo
to the Justice of the Peace.
Upon the trial the Justice of the Peace
who rendered the judgment was intro
duced by Smith, who swore that he was
in the town of Meanwhile, sew
eral miles from where he lived;
that William and Isham Jennings end
Smith came to him and inquired for the
amount of the judgment against Jen-
nings in favor of Martin. He states that
he had not at that time examined the pa
pers or rendered the judgment; that the
papers had been before that time handed
to him by son of Martin, but that he
had left them at home without reading
them; that the two Jennings stated to
Smith the amount they had paid and said
there was balance due of about only
eighty dollars.
Smith SAID to the witness that he would
stay the judgment for that amount He
also states that Smith never gave any
written order of stay and never came be-
fore him to stay 1t except in McMinnvlle
as just stated when the papers were not
present and before he had read them or
rendered the judgment.
He also swears that he wrote out the
judgment some time after, but don't recol
lect how long after, and put Smith down
as stayor for eighty dollars.
The original docket of the Justice was
introduced. An entry appears on the
docket in this form:
1860. August
A. Martin vs.. VIM. Jennings, Isham Jennings.
Stayor, W. F. Smith for $50; debt sl45 u.
d. WIsEMAN, J. P.
WIseman further states that about the
time this Judgment was rendered he saw
the plaintiff Martin, and told him of the
difficulty, and Martin said in reply that
the Jennings would pay Ii so soon as they
got back from the South.
He was asked on cross examination if
he had not altered or erased his docket.
He said he hal not.
II is stated in the bill of exceptions
that the original warrant and three exc
cutions were read as evidence to the
jury.
The warrant does not appear in the re-
cord. Only two executions appear in the
record.
The amount of the judgment as reCited
in one of these executions corresponds
with the'judgmentO on the Justice s docket.
In the other the amount of the judgment
as recited does not correspond with the
judgment as it appears on the Justices
docket.
The effort of Martin on the trial was
to show that the docketof the Justice had
been altered, and that it originally appear
ed Smith was bound for $145.72, the full
amount of the judgment against the Jen-
nings, his principal.
One witness, son of Martin, the plain
tiff below, swears that he saw among the
papers of the Justice of the Peace a paper
writing which purported to be an order
from Smith to Wiseman, the Justice au-
thorizes him to place his name as stayor
to the judgment against the Jennings, in
favor of Martin, and swears with much
particularly as to the amount of the
Judgment mentioned in the order,
and states that it was mentioned
in the order as a judgment for Sl45.72.
He does not know, however, the hand
writing of Smith, and don't recollect the
date of Wiseman; the Justice denies that
there was at any time any such order in
his possession. This case is remarkable
for the confusion and conflict which ex-
list in the evidence, and the charge of the
Court is exceedingly obscure.
His Honor stated to the jury that twas
incumbent on Smith, who represented by
the record from the Justice of the Peace
as stayor to show that he is not legally
bound as such stayor.
These instructions applied to the facts
of this case, are erroneous.
Whether the docket of the Justice had
been altered or not, it appears from the
statements of the docket in its present
form that Smith is only stayor for $50 of
the judgment.
If His Honor meant that il devOlved on
Smith to show by extrinsic evidence that
he was not bound for so much as eighty
dollars of the judgment, otherwise he
would be bound for that amount, then
the charge is erroneous. For taking the
docket in its present condition without
any extrinsic evidence being brought to
bear upon it Smith is not bound as stayor
for any amount. To become stayOr is to
confess judgment. The judgment con-
fessed by the stayor cannot be for less
amount than the judgment against the
original defendant Roberts VS.. Cross,
Sneed r. 23S.
If His Honor meant that it was incum-
bent on Smith to show that he was not
legally bound for the full amount of the
judgment of S145.72, then the charge is
erroneous.
As we have Just seen the statements of
the docket are that Smith is stayor for
only $50.
This being so it was error in the court
to instruct the jury that unless Smith
showed that there had been no alteration
in the docket by which it had been placed
| in its present form he would be bound as
stayor for the S145.72.
This is the necessary effect of the
charge that it was incumbent on him to
show that he was not bound as stayor for
S145. p, when the docket on its face did
not show that he was so bound.
In a case like the present when the find
ing is against the alleged stayor the prop
er Judgment against him is for the amount
due on the judgment against his princi-
pals, with interest at the rate of 124 per
cent per annum and costs. Code, secs.
1924, 3,13S; 2 Head, 349.
His Honor in this cause awarded pro-
| cedendo to the Justice.
1t does not appear with reasonable GER
tainty from the record for what amount
| the Justice is to issue execution against
the stayor in obedience to the procedendo.
whether for $50 only or for the $l45.72-
Let the judgment be reversed and the
case remanded MCCAIN Judge.