I. The judgment in favor of Sheldon, which is the preferred debt in the assignment, was regularly confessed according to § 383 of the Code. See Mann v. Brooks (7 How. Pr. R., 449), decided by Justice CADY, in point, and see also Park v.Church (5 How. Pr. R., 381).
II. The defence of usury is a personal defence, and was waived by the judgment debtor when he made the assignment and gave the preference. He had the same right to give the preference as he had to pay the debt, and the same consequences follow, so far as the plaintiff is concerned, *Page 85 as if he had paid it. The plaintiff is a mere stranger to the judgment of Sheldon against Judson, and cannot insist upon its invalidity on the ground of usury. (Post v. Dart, 8 Paige, 639; Shufelt v. Shufelt, 9 Paige, 137; Dix v. Van Wyck, 2 Hill, 522.) The plaintiff in this case, who is a junior judgment creditor of Judson, does not stand in legal privity with him, so as to enable him to avoid the prior usurious judgment in favor of Sheldon. Even had he become the purchaser of the real estate of Judson under his own execution, he could not have maintained an action to set aside Sheldon's judgment for usury, without offering to pay the amount actually due. None but the borrower is excused by the statute from complying with that principle of equity, before invoking the aid of the court. This was so held by the court of errors in Post v. The Bank ofUtica (7 Hill, 391), approved 2 Comst., 131.
The judgment should be affirmed.
MASON, J., orally dissented from the position taken by WILLARD, J., that the judgment was regular; being of the opinion that the Code required a more specific statement of the consideration in a confession of judgment.
All the judges concurring in the positions assumed in the opinion of GARDINER, J.,
Judgment affirmed.