
    Charles Fowler v. Robert Henry. The Same v. Thomas Fulton.
    Ii the borrower, after a loan made, and without any previous agreement to do so, confess a judgment for money lent on usury, he is forever concluded: Nor can the indorser of a note made in consideration of such judgment avoid his own liability by reason of usury in the original loan.
    1\ L. 286.
    Tried before Mr. Justice Evans, at Newberry, Fall Term, 1830.
    These were suits by sum. pro. against the maker and indorser of certain promissory notes : defence, usury. The maker had originally borrowed money of the plaintiff on an usurious interest, gave his notes for the amount, and from time to time made several payments on them. Afterwards the notes being lodged with an attorney for collection, the maker confessed judgment for the balance remaining due. The notes now in suit were subsequently made in consideration, and accepted in satisfaction of the judgment.
    His Honor, the presiding Judge, held that it was too late to inquire into the legality of the original loan, after a judgment establishing its validity: That it made no difference that the judgment was by confession ; since it was not made in pursuance -of any agreement entered into at the time of the loan : It was no device to cover an usurious transaction, but avoluntary admission by the maker, of the justice of the debt, at a time when it was fully in his power to set up this defence. He was therefore con-, eluded, and the debt being legal, the notes now in question were not usurious.
    Decree for plaintiff. Motion to reverse the jndgment.
    Thomson, for the motion,
    cited Ord. on Usury, 95. Church’s Dig. Tit. Usury. Tuthill v. Davis, 20 Johns. 285. 2 Saunders PI. &. Ev. 497- Cowp. 796. Payne v. Trezevant, 2 Bay. 23.
    Irby, contra,
    
    cited Com. Dig. Usury. A. B.
   Johnson J.

delivered the opinion of the Court.

The Court concurs in the views expressed by Mr. Justice Evans. There is no question that if a judgment be confessed or suffered in pursuance of an original corrupt and usurious agreement, that the borrower should so confess or' suffer it, it would be void under the statute: but it is equally clear that if the defendant had an opportunity according to the ordinary forms of law to malte his defence, and neglected to avail himself of it, that he is forever concluded, and such seems to have been the case here. The motion is therefore dismissed.

Motion refused.  