case tempt Hardwicke bush assignee of Jones versus gower matter that may have  be plead in the original action can be plead to a cognizant fa upon the  judgement the word contract in the statute against usury extend to all  personal thing stram but not so full the defendant Gower have give bind and  judgement to Jones Jones afterward become bankrupt and thereupon his assignee  sue out a cognizant fa upon the judgement against the defendant which  judgement be of Michaelmas term defendant plead in bar that upon the d of  December a corrupt agreement be make between the say Jones and the defendant  for the loan of pound for six month he be to pay pound at the end of six month  and to give his bind for security and further to seal a warrant of attorney  whereby it shall be put into the power of the say Jones to cause the say  judgement to be enter upon record and to give a release of error that in  pursuance of the say agreement the pound be lend and the defendant on say d of  December enter into a bind and make such warrant of attorney and release of  error that the say to be pay for interest for six month be against the statute  that the say judgement be enter as of Michaelmas term and be void because of  such corrupt agreement sergeant chapel for plaintiff this plea be insufficient  it be a absurd plea in aver the judgement to be void in pursuance of a corrupt  agreement but judgement be not void for none of the statute of usury ever  extend to judgement the statute be Elizabeth c S James c car two c and Ann  saint c the word of the statute be that all bind contract and assurance for  payment of money lend upon usury shall be void none of which word can import  any thing more than to make the act of the party void and not to make  judgement void which be the act of the court judgement be not assurance but  proceed upon assurance if the usury will vitiate a judgement it will never be  plead pen the action but after judgement obtain it will be plead to a  cognizant fa or show in hearing complaint that nothing can be plead to a  cognizant fa but matter which come subsequent to the judgement I salk west and  Sutton and which he can not have plead before and so be cro Elizabeth Allens  and Andrews and that what be in annul of the record be not sufferable he cite  also cro Elizabeth Middleton v hill where the same plea as in the case at bar  be attempt to be maintain to a cognizant fa upon judgement confess as this be  but the court hold that the judgement can not be term a assurance nor avoid  upon such case tempt Hardwicke a surmise for the defendant may have plead it  to the action and not have suffer judgement and though it may be a practice to  avoid the statute that shall be rather tolerate than to avoid judgement upon  such suggestion the same point be also case tempt Hardwicke er p hold in side  row and Bellaseys he cite also cro James that the bare surmise be not  sufficient to avoid a judgement sergeant Hawkins for defendant as to the  absurdity of the plea he answer that the plea have by the demurrer confess  that judgement be enter pursuant to the warrant and enter up corrupt that the  word assurance in the statute be as large a word as can be and as a fine levy  or recovery suffer be the assurance and not the deed to lead the use so the  judgement enter in pursuance of the warrant and not the warrant be the  assurance he admit the judgement be not Self facto void nor absolute but be so  as to this purpose that the reason why such plea be refuse in the case cite  for plaintiff be because it may have be plead before the judgement but in this  case there be no opportunity for the defendant to plead it and therefore as we  may not have have advantage by plead it before we ought to have it now that  the reason upon which the case of Middleton and hill be find be because a  judgement shall not be avoid upon a surmise but by   farmer be case a averment  of covin c may be to avoid a fine jenkins century n usury fraud or covin may  be aver against a fine I roll Abr a man shall have a hearing complaint against  execution take out upon a statute usuriously acknowledge cro James S p and no  objection that a surmise can not be make   b Burton case that if there be  usury the party shall not be conclude from averment against a deed and if he  be not conclude against a deed why shall he against a record vent fine be  often set aside for undue practice in the pass of they lev a fine vacate for  infancy in the wife sir Thomas Jones error on a judgement in a inferior court  upon a bind to pay money at a place out of jurisdiction and agree that the  plaintiff in error be estopped to take advantage of that because there be a  surmise in the record below that the place be within the jurisdiction which  the defendant below non deny and the court be inform that the surmise never be  make in the inferior court but contrive after the writ of error bring they  order the same to be erase out of the record and then reverse the judgement  side a judgement vacate be enter a term precedent to the writ that the court  will not have suffer this judgement to be enter up if the usury have be show  to they and for the same reason they shall reverse it now it appear case tempt  Hardwicke sergeant chapel in reply that if the argument be good of his not  have have opportunity to plead be good it shall at least appear very plain to  be a case where no opportunity be whereas this warrant be only set out to be a  deed to give Jones a power to enter up the judgement now that may only be a  agreement to appear voluntary without a arrest for it do not say it be a  warrant to empower he to confess a judgement he cite also cro Elizabeth and  Keilway that a hearing complaint do not lie after judgement upon a thing he  may have plead before case tempt Hardwicke er p judgement for where will you  stop the plead in this case be only a warrant to empower the plaintiff to  enter lip judgement and what be that more than the case put by my brother  chapel of action bring and a power to a attorney to appear voluntary the  defendant if he will may have revoke this power and if he have and plaintiff  have apply to the court I shall upon disclosure of this matter have be of  opinion to let the revocation stand if the Act have say case tempt Hardwicke  all judgement by default upon usurious contract shall be void what work will  that have make why to draw into examination all judgement by default which  will always be use as a mean of delay the sit of mortmain e I have as strong  word as possible against corporation take in mortmain not to take by colour of  gift c well elsewhere to any place whatever modus art well ingenio and it be  hold thereupon that they can take by no manner of conveyance but they to evade  the statute use to bring a praecipe and so upon the tenant default recover the  land by the judgement and that be hold not to be within the statute so that it  be necessary to make the stat of e c which give a inquest to inquire in such  case whether the demandant have a right in the thing demand or no and if find  not to have then to forfeit c which show that judge do not admit any surmise  against a judgement and I see no reason for we to contrary as to the case cite  of statute staple they be quite of a different nature for the record there be  but pocket record and they too be no more than bind upon record so as to set  aside fine for fraud to be sure the court can do it but then that be not do by  plead and avoid they upon record but by the discretion of the court upon a  interlocutory motion but however it furnish another consideration videlicet  whether judgement of this sort may not be set aside in such a interlocutory  way as whether the party may not come to the court and by motion pray to set  aside the judgement for ill practice for the warrant of attorney may be  consider as a contract within the Act of parliament and upon that foot may be  set aside so where a infant let we judgement go by default if be appear by  attorney to who he have make a seal deed though he can not set it aside by  writ of error or by hearing complaint or upon plead to a to know facias yet he  may come to the court and move to set it aside as be the case of Jackson and  mosey Trin geo I in c b where a warrant of attorney to enter up judgement be  make by a infant for security of a pass debt and judgement enter up thereupon  and the court upon motion set aside the judgement but I be afraid that in this  method we be not warrant by the statute or by the rule of law to do it and  therefore I be of opinion that judgement be give for plaintiff but see Cowp  where upon a rule nisi to vacate a judgement confess and to stay the proceed  on the to know facias upon a allegation that the consideration upon which the  warrant of attorney have be obtain be usurious the court direct a issue to try  the usury and enlarge the rule in the mean time probin I the defendant in this  case have give up a right of insist upon the usurious contract which he may  have plead lee I this case depend entire upon the construction of the statute  against usury there have be instance in this court of bind which be fair bind  at first and at the day of payment a usurious contract make for forbearance  and those bind hold to be good but that the plaintiff shall forfeit Triple  value in a suit upon the case tempt Hardwicke latter clause of the statute and  so be the case of I sander and t ram and some method of that sort method be  think of in case of this nature but we must go upon the general construction  of the statute of usury there be a Act of parliament the Act against game  which particular provide that judgement shall be void the plea in this case be  something odd but take to be a plea of a warrant of attorney to enter  judgement the question be whether such a judgement be a assurance for  otherwise the statute do not make it void whatever other proceed it may have  institute now the judgement of the court have never be take to be a assurance  but the contrary as appear by the case cite so that if the word of the statute  do not take in this case to be sure the plea be not good Lord Hardwicke c j I  take the word assurance in the Act to mean assurance of land as be the proper  legal signification of it for the word contract extend to all personal thing  per tot cur judgement for plaintiff this case be cite for the first point Tid  case tempt Hardwicke er p