Montague v. McDowell

Chief Justice Sharswood 'delivered the opinion of the court, January 2d 1882. A judgment confessed by warrant of attorney ,is as perfect a judgment as if rendered upon the verdict of a jury after a trial. The court will, however, in such a caáe, upon the defendant showing a good defence in law or equity, open it and allow him an opportunity to controvert the cause for which it was entered before a jury. In no other respect is there any [269] difference, and a judgment confessed is conclusive, and cannot be attacked collaterally by the defendant: Braddee v. Brownfield, 4 Watts 474; Hageman v. Salisberry, 24 P. F. Smith 280. This rule has been expressly held to be applicable to a case where excessive interest was set up as an answer to the judgment collaterally: Rutherford v. Boyer, 3 Norris 347. In Hopkins v. West, 2 Norris 109, a judgment was confessed which included a greater rate of interest than six per cent., and on it the same rate continued to he paid. Afterwards the defendant paid the amount of the judgment and it was satisfied of record. He then brought an action to recover back the excess, and it was held by this court that while he could recover the money paid beyond six per cent, subsequent to the judgment, lie was precluded from going behind it and recovering that which was included in it. That case, wo think, cannot he distinguished from the one presented on this record. Here the judgment confessed November 2d 1877 was paid and satisfaction entered June 28th 1878. It was not indeed paid in money, but it was paid in law. The notes upon which it was entered wore surrendered, additional notes for new debts taken, and a new judgment — the one in question —was entered for the whole amount. Satisfaction was entered on the old judgment, which, no doubt, was part of the arrangement. It cannot be doubted that in law the old judgment was paid. If there had been any fraud or mistake in the transaction the defendant might have taken a rule to strike off the satisfaction, open the judgment and let him into a defence. The new excess of interest entering into the new judgment was no doubt a defence after it had been opened, but as to the old judgment the defendant was precluded. He had full opportunity from November 1st 1877 to June 28th 1878 to have applied and had the old judgment opened, lie did not avail himself of it. If the satisfying of the old and the giving of the new judgment had been simultaneous or nearly so, the court might have considered it a mere device fraudulently to conclude the debtor, and on that ground have struck off the satisfaction and opened both judgments; but as long as the old judgment stood unopened and unreversed it was conclusive upon the defendant that he owed the debt, and it would be a dangerous precedent which would shake this rule on account of the hardness of a particular case. It is to be remembered in all discussions upon the subject of interest, that what used to be and still is called usury, is not now unlawful in this state — as it was, prior to 1858. By the Act of 28th May of that year, Pamph. L. 622, the penalty previously imposed for taking more than the prescribed rate was repealed. The creditor may lawfully charge and receive the excess, though [270] he cannot coerce its payment by suit or process, and the debtor may recover it back if the action is brought within six months after payment. Judgment reversed and venire facias de novo awarded.