King v. Shaw, 3 Johns. 142

King v. Shaw

3 Johns. 142 | N.Y. Sup. Ct. | 1808

Per Curiam.

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, *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.