Rathbone v. Rathbone

27 Mass. 1

Opinion

Per Curiam.

Footnotes

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We think the copy of the record of the judgment alone, without the antecedent proceedings, is sufficient to maintain the issue on the part of the plaintiff: as when an action is brought upon a judgment rendered in this Commonwealth, it is enough for the plaintiff to produce a copy of the record of the judgment, without producing a copy of the writ. If the defendant can derive advantage from proving the antecedent or subsequent proceedings, he can produce the record of them.

The question then is, as the judgment was entered up on a warrant of attorney to confess judgment on a bond for $25,200 conditioned for the payment of half that sum, what judgment shall now be rendered. Execution ought not to be issued for $25,200, for it appears the bond was for a penal sum; but the judgment will be, that there is such a record as the plaintiff alleges, and he must show what sum is justly due to him, and take execution for that amount. As we ■ cannot pursue the mode used in the State of New York, wheie a specification of the nature and consideration of the debt is to be filed, under certain statute regulations, we must proceed in analogy to our. own practice. We have one class of cases, where the penalty of a bond is confessed to be forfeited, and the obligor is heard in chancery, and execution issues for the sum found due to the plaintiff upon such hearing. To these cases the one before us bears a strong resemblance.

Parker, chief justice, Putnam, Wilde, and Morton, justices.