
    Daniel Wheaton versus John Tisdale.
    In a writ of entry, grounded on a mortgage and a posterior release of the tenant to the demandant, the tenant is not entitled to prove usury by his oath, under the provision of the statute of 1783, c. 55, § 2.
    In a writ of entry sur disseisin, the demandant counts upon his own seisin of the demanded premises within six years, and upon a disseisin by the tenant.
    The tenant pleads in bar, that the demandant had not, at the date of his writ, any right to the demanded premises, except by two deeds, the one dated the 8th of November, 1806, being a mortgage of the demanded premises, as a collateral security for the payment of 700 dollars with interest; and the other a quitclaim of the same premises, for the consideration of 1200 dollars, expressed * therein, which is dated the 10th of September, 1810 ; and that in the said sum mentioned in the mortgage deed, for securing the payment of which the said deed was given, is contained,—by a corrupt and usurious contract, made by the demandant with the tenant, for the delay of payment of the sum actually received, — more than after the rate of six per cent., viz., at the rate of ten per cent.; and this he is ready here in Court to ver ify by his oath ; wherefore he prays judgment if the demandant his action against him ought to have by virtue of said deed of mortgage.
    And further he saith that the demandant his action aforesaid on account of, or by virtue of the said quitclaim deed, ought not to have, &c., because he says that in the consideration mentioned in said deed there is contained money, which accrued by a corrupt and usurious contract, made by the demandant with the tenant, by which was secured to be paid, and which is actually contained in said consideration, for the forbearance of the payment of the sum originally lent, more than after the rate of six per cent. <fcc., as before ; and tenders his oath, and prays judgment if the demandant ought to have and maintain his action by virtue of said deed of quitclaim. To each of- these answers the demandant replies, that he ought not to be precluded, &c., because he says that the evidence offered therein to support die fac .s alleged therein is insufficient to prove the said facts, and that the said pleas are severally, in other respects, insufficient and informal; to which he is not bound by the law of the land to answer ; — wheieiore he prays judgment, &c.
    The tenant rejoins that his pleas are severally good, and the evidence offered sufficient in law for the purpose of proving the facts alleged ; and forasmuch as the demandant has not denied that such evidence will be given, but only denied its sufficiency, he prays judgment.
    * Baylies,
    
    for the demandant, insisted that the case was not within the statute,  which gives this extraordinary defence only where one is “ sued on any bond, contract, mortgage, or assurance, for the payment of any moneys, wares, merchandise, or other commodities.” The great danger of perjury arising out of this provision of the statute will naturally prevent its being extended beyond its necessary construction. This action is not brought on a mortgage, or any other assurance for the payment of money or any other commodity whatsoever.
    
      
      
        Stat. 1783, c. 55, § 2.
    
   By the Court.

Clearly in this action the tenant is not by the statute entitled to this peculiar mode of defence. If he could have proved the case stated in • his pleas, he should have gone to the jury with his evidence. The pleas are adjudged bad, and the demandant must have judgment for possession of the demandet premises  