
    Stephen Thatcher and Another, Executors, &c, versus Daniel Gammon.
    A judgment was rendered by default on a contract including usurious interest, and the judgment debtor gave a new security by mortgage for the amount of the judgment; and it was holden, in an action upon the mortgage, that it was no-competent for the debtor to object the usury.
    *In this action, the plaintiffs, as executors of the last [*268] will of Peter Thatcher, deceased, demanded possession of sundry tracts of land, which the defendant had mortgaged to the said Peter, by deed dated the first day of August, in the year 1809, as collateral security for the payment of the defendant’s promissory note to the said Peter, of the same dale, for the sum of $ 1200.
    The defendant pleaded in bar, that more than six per cent, per annum was taken, secured, and reserved in the said mortgage deed. The plaintiffs traversed the said allegation ; and, issue being joined thereon, the same was tried at the last October term, before Thatcher, J.
    
      The defendant, to prove the issue on his part, produced a copy of the record of a judgment recovered by the plaintiffs’ testator at the Court of Common Pleas for this county, June Term, 1809, against the present defendant, for the sum of $ 502.06 damage, with costs, the same having been rendered upon the default of the defendant at the first term,'and was for the non-payment of his promissory note to the said testator, dated the 24th of May, 1807, for $450, payable on the 16th of July then next. The defendant then proved, by the testimony of Edward Gammon, that, in January, 1806, he, the witness, borrowed $ 300 of the testator, which remained in his hands until the said 24th of May, 1807, at which time the testator required him to give a note, with a surety for the same, payable in sixty days, including twenty-four per cent, interest, which the testator cast and added to the principal, and then said the whole amounted to $ 450, for which sum the witness, with the defendant as his surety, gave their joint and, several promissory note, payable in sixty • days ; that afterwards the said note was put in suit against [*269] the defendant only, and * the said judgment recovered as aforesaid. The defendant then proved that the amount of the same judgment, so recovered, was included in, and made a part of, the sum, the payment of which was secured in and by the said mortgage.
    The judge instructed the jury, that if the sum, for securing the payment of which the mortgage was made, included the sum for which the said judgment had been recovered, the mortgage must be considered as null and void ; and that a judgment, so rendered upon default, would not do away the effect of the usury which was contained in the original note, but that it would continue to affect any subsequent contract into which the same parties, with knowledge of the fact, might enter for securing its payment.
    A verdict having been returned for the defendant, the plaintiffs filed their exceptions to the said opinion and directions of the judge, and the cause stood over to this term for the consideration of the said exceptions.
    
      Whitman and Emery, for the plaintiffs.
    
      Todd and Adams, for the defendant.
   The action was continued nisi for advisement, and at the succeed ing term, in Berkshire, a new trial was ordered.

Parker, C. J.

Upon consideration, we are satisfied that the direction, given by the judge to the jury in the trial of this action, was wrong ; and that the judgment, although suffered by default, precluded the party, against whom it was rendered, from impeaching it for any cause of which he might have availed himself upon a trial.

The general principle is certainly clear, that, upon a scire facias, or in an action of debt upon judgment, no defence can be admitted which existed prior to the judgment; and for this sufficient reason, in addition to the sanctity of judgments of courts of record, that there would be no termination to suits, if parties were permitted to lie by when regularly called into court, and suffer a judgment to go against them, and then, upon a process instituted to enforce the judgment, to allege matters to impeach it, which might have * prevented the judgment, if the party had not been either [*270] grossly ignorant or designedly vexatious. If such a defence could be admitted against a first judgment, it might also against a second, and against as many as might, from time to time, be obtained, in consequence of the omission of the debtor to satisfy the debt.

Matters happening after the rendition of judgment may be pleaded in discharge of it; such as payment, or a release. And an audita querela, to prevent or recall an execution, may be sustained upon some ground which occurred after the rendition of judgment ; so that the debtor had no opportunity to plead it to the action or to give it n evidence. But a payment of part of a demand, or of the whole of it, made before judgment, could not support a plea of payment to an action brought upon such judgment, or an audita querela; because it was the folly of the party, that he had not the advantage of it before judgment rendered.

It was supposed, however, in the argument, that, although this general principle is true, it is not applicable to a defence of usury, which goes to nullify and destroy all securities taken, which are affected by it.

But no distinction is found, in the books, between this and any other defence. The judgment is, in all cases, considered conclusive evidence of the existence and justice of the demand ; and, unless voidable for error, it cannot be impeached, except for matter going in discharge of it ex post facto ; and, even in that case, the proceedings by plea or by audita querela do not disaffirm the judgment, but merely show that it has been virtually executed.

The authorities, cited to maintain the contrary doctrine, are principally cases of judgments confessed upon warrants of attorney, which are altogether different from those which are rendered, in the ordinary course of law, in adversary suits. In the former there is no opportunity to plead. Indeed, such judgments are mere assurances, like the confessions before justices of the peace under our statute of 1782, * c. 21. Such is the case, also, of a fine [* 271 ] levied upon an usurious contract. But in the case of a judgment upon an adversary suit, where the party is duly summoned, but chooses to make no defence, we see no reason for his having a future opportunity, any more than if he had gone to trial and had neglected to produce his evidence, which could never authorize him to impeach the judgment.

There is much more reason here, than in England, for refusing this defence. For, by our standing laws, if a judgment has been rendered against any party by mistake, accident, or any unforeseen cause, he may, on petition, have a review within a limited period. So that, if a party should have been defaulted, he is not left without an opportunity to make any legal defence to the suit, unless he shall have forfeited the privilege by his own carelessness. Every default, therefore, which is submitted to until the time for a rehearing is elapsed, must be considered voluntary. And great confusion, as well as a perpetuity of disputes, would be the consequence, if, under such a system, a defaulted party should have the right, whenever he is called upon to satisfy a judgment, to deny its force and operation.

The evidence in this case, therefore, did not legally prove that the mortgage was usurious. The judgment upon the contract, which was affected by usury, having concluded the debtor from showing it in an action upon the judgment, and the residue of the debt being unimpeached, the verdict ought to have been for the plaintiffs. A new trial is therefore granted. 
      
      
        Bac. Mr., Title, Usury, E., Cro. Jac. 33; Cro. Eliz. 25. —3 Co. 80, a. — Ord on Usury, 93. — 1 B. & P. 270. — Vin Abr., Usury, I. — 3 Johns. Rep. 139, 250. — 2 Johns Ca. in Error, 280. — Sid 182. — 3 D. & E. 531.
     
      
       Vide Roberts vs. Goff, 4 B. & A. 92.
     
      
      
        Bearce vs. Barstow, 9 Mass. Rep. 47. — Flint vs. Sheldon, 13 Mass. Rep. 443.
     