When judgment is taken against principal and surety before a justice of the peace, and bail for stay of execution is entered without the assent of the surety, the latter may, under the provision of the act for the protection of sureties and indorsers, of April 9,1870 (S. & S. 422), upon execution being issued against him and the principal at the expiration of the period of stay, pay the money under protest, and maintain an action to recover the same from the bail for stay.

Motion overruled.