Collins v. Webster

The opinion of the court was delivered,

by Lowrie, C. J.

— The error assigned here is to the execution; but the record does not sustain it. The judgment is to secure the payment of the debt in five years, with interest annually, and with a provision that, on default of sixty days in paying interest, the whole debt shall be due. The execution was not issued until five months after the first year’s interest had become due, and therefore it appears to be quite regular. Such judgments, obtained by confession and without writ, are under the equitable control of the court, and if the defendant below had really paid the interest, he could and ought to have shown that fact to the court below, and then the execution would have been set aside. This is not the place to show that fact; but even here it is not alleged: See Banning v. Taylor, 12 Harris 289*

Proceedings affirmed.