
    *Warwick against 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.
    Ewing, contra.
    The only question is, whether the day of payment mentioned in the condition of the bond has passed ? The bond is conditioned for the payment of $1400-in three years, with interest annually. At the end of one year the interest became duo, and if it was not paid at the day, the penalty of the bond became forfeited. The debt then, in point of law, became due, and judgment might be-entered for the penalty, on failure of payment of the interest. In all these cases, where money is to be paid by instalments, the course is, upon the failure of payment of any instalment, to take judgment for the whole penalty, and to issue execution for the instalment. Martin v. Fouchet, 2 Bl. Rep. 706. In the present case, although the judgment was taken for the penalty, yet the execution was issued only for the interest.
    The fifth section of the act was merely meant to place a -check -upon the conscience of the party, and to provide against the entering of improper and fraudulent judgments. But here the money was legally due, although the time of payment of the whole of it had not arrived.
    
      Wall, in reply, said, that this case was not at all affected ■by the one read from Blackstone, for our statute contemplated only *a default in the payment of the money mentioned in this obligation.
   Kirkpatrick, O. J.

The proceedings are substantially .according to the true spirit and intention of the act. The law intended that a man should have his legal remedy upon "this statute, in the same way and to the same extent as if he had proceeded by summons or by a regular suit.

Ford, J.

By the principles of the common law, the whole penalty is due upon the non-payment of the interest, and for the amount of the penalty the judgment was always entered; .and, in order to be relieved, the debtor was obliged to resort to chancery; but now the practice was, to endorse upon the execution the sum or instalment actually due, and the levy was made for that amount only.

Eossell, J. concurred.

Motion to set aside the judgment refused. 
      
       Sec, upon this subject. 2 Arch. JPrac. 18; Ilardw. 270; 16 East. 163; 1 M. & S. 706. In debt on bond for the performance of covenant, &c„ where breaches are suggested, &c., under the statute, (Mev. Laws 306-7) although the writ of execution must be for the entire penalty, damages and costs, yet it should be endorsed to levy only the •damages assessed upon the breaches, the costs found by the jury, the costs of increase, and the costs of execution. 1 Arch. lJrac. 267.
     