delivered the opinion of the court,
The learned judge below was undoubtedly right in holding that when there is a payment of usurious interest for the forbearance of a loan or debt, the right to retain and deduct such excess continues until the whole is paid. It is only when the whole amount and illegal interest has been voluntarily paid, that no suit to recover it back will lie after six months; and we agree also • that in this case there was not a voluntary payment within the meaning of tho Act of May 28th 1858, Pamph. L. 622. Nor do we think that the decision of this court in Federal Insurance Co. v. Robinson, 1 Norris 357, will avail the plaintiff in error. Here the debt, although collected on-execution, was not. paid to the plaintiff, but the excess above legal interest was paid into court and claimed by the defendant as a payment on account. Had the money been raised by an execution on the original judgment, the defendant would have been entitled to it. But it seems to have been overlooked in the court below that the original judgment was revived after the payment of the usury for debt and interest, without allowing credit for such payment. It is clear that, in order to avail himself of this defence, the defendant should have applied to the court to open that judgment. Standing unopened, it was conclusive, and the defendant could not go behind it to show that .there was any defence to it in whole or in part: Hopkins v. West, 2 Norris 343.
Judgment reversed, and judgment for the plaintiff for $139.40 and costs on the case stated.