King v. Shaw — 3 Johns. 142

Majority

p. 142

King against Shaw.

ALBANY,

Feb. 1808.

Headnote

A warrant of attorney was given in vaca-. tion, to enter up judgment, in vacation, or term, on a bond given at the same time, and payable immediately ; and Judgment was entered up as of the preceding term, but the court refused, on motion, to set aside the judgment. On affidavit, that the bond and warrant of attorney, on which judgment was entered up, were forged, the court directed a feigned issue to try the fact of for-svry-

N. WILLIAMS and T. A. Emmett, for the defendant,

moved to set aside the judgment and execution in this cause; 1. Because, the judgment was entered up on a bond and warrant of attorney, which were forgeries, 2. For irregularity.

The bond was dated the 13th of October, 1787, and payable on demand. The warrant of attorney, was dated at the same time, and authorised the attorney to enter up judgment on the bond, “ in term or vacation and the judgment was entered up, in the vacation, as of the preceding term of August.

As to the irregularity, they cited Strange, 1121. 8 Term, 153. 1 Mod. 1. 7 Mod. 5. Siderfin, 222. 1 Term, 80. 1 Ventris, 113. 1 Crompton, 381. 1 Tidd’s K. B. Prac. 497.

Sedgwick and Henry, contra.

An authority to enter up judgment in vacation, on a bond, payable immediately, will include the vacation in which the bond was given; for the parties must be supposed to mean the present, as well as any future vacation,. There was, then, no breach of good faith,

p. 143

"in entering up the judgment, in the August vacation ; and the relation back to the term of August, is a fiction which can prejudice neither the parties nor purchasers, since the judgment is a lien only from the day on which it is docketed. To enter up judgment on a bond, of a term before it was executed or due, is, however, error on the face of the record; but we do not think it proper to interfere, in this way. The defendant must be left to his remedy by writ of error ; and the plaintiff, to protect himself by a release . of errors, if he can procure it. As to the charge of forgery, the affidavits are contradictory, and this court cannot weigh the ere dit of those who have made them. It is indispensable, therefore, that an issue be awarded to ascertain the truth, as to the genuineness of the bond and warrant of attorney; and this issue must be prepared and brought to trial at the next circuit, to be held in the county of Cayuga.

Rule refused.