Warwick v. Matlack

On a bond conditioned for the payment of a certain sum of money in three years, with interest annually, a judgment may be entered for the whole penalty of the bond on the default of payment of the first year’s interest..

A judgment on a bond and warrant of attorney had been entered as of the-'term of May last, in the usual form, under the “act directing the mode of entering judgments upon bonds with warrants of attorney to confess judgments," (Rev. Latos 685) by William Warwick against Abraham Matlack. The bond upon which the judgment had been entered was dated the 22d of January, 1821, and conditioned for the payment of $1,400, in three years from the date thereof, with interest annually. The affidavit, which was made by the plaintiff at the time of confessing the judgment, in pursuance of the directions of the fifth section of the act, stated, that the true consideration of the bond was for lands sold, and that the debt was jusrly due and owing. The warrant of attorney authorized the confession of the judgment for the amount of the penalty of the bond, and was drawn in the usual form. The judgment was entered for the penalty of bond. * Wall, upon the behalf of Mahlon Lewis, (who, he said, was a purchaser without notice of the judgment of certain lands upon which it operates as a lien,) now moved to set this judgment aside, because it had been entered before' the debt became duo. The bond bearing date on the 22d January, 1822, and having three years to run, and the judgment being entered on the 15th of May, 1822, was long before the day of payment mentioned in the condition of the bond, and therefore erroneous. The words of the first section of the statute were, “ that it should be lawful for the obligee, at any time after the day of payment mentioned in said bond or obligation, to apply to a justice of Supreme-Court,” &c. And the fifth section of the statute required that the plaintiff should produce, at the time of confessing such judgment, to the court or judge before whom such judgment should be confessed, an affidavit, stating that the debt for which judgment is confessed, is justly due and1 owing. Whatever might have been the practice at common law, he apprehended that under this act of the legislature a judgment could not be entered until after the day of payment mentioned in the bond.