
    Gunnison v. Gregg.
    A plea of usury concluding -with a verification is good.
    A purchaser of an equity of redemption may avail himself of the defence of usury paid "by the mortgager, in a writ of entry on the mortgage.
    "Writ or Entry on a mortgage made by one Seth Chellis to the demandant.
    The tenant pleaded in bar that the mortgage, which was made hy Chellis on the 17th day of November, 1828, for $900, without any note or other collateral instrument, included the sum of $31, of-which the consideration was usurious; that at sundry times between the date of the mortgage and the 17th day of November, 1836, Chellis paid him the farther sum of $72, for the forbearance of the said sum of $900, over and above the lawful rate, in consideration of a corrupt and usurious agreement, &c.; which, said sums, amounting to $103, the amount claimed as unpaid upon the mortgage being $240 and no more, is less than three times-the amount so received and included in the mortgage as usury; that the tenant is in possession of the land under a deed from Chellis, with full covenants of seizin, warranty, &e. "Wherefore, &c.
    To the reception of this plea, the demandant interposed, two objections. 1. Because the tenant has not offered to verify it by the oath of Chellis after praying for the penalty of the usury, and thus depriving the demandant of the opportunity of denying the usury upon oath. 2. Because the tenant cannot avail himself of the penalty for usury paid by a third party.
    
      Gushing, for the demandant.
    To the second objection. The demandant holds a conditional deed from Chellis, to be void upon the payment of a sum of money, and a suit is brought to recover the land under this deed, which has not been avoided by the payment of the money. The tenant claims to avoid paying the money by availing himself of a penalty to which Chellis might have been entitled. This he cannot do. The right to recover or deduct a penalty cannot he assigned for money or anything else. Chellis did not sell the tenant the right to take the penalty out of the demandant. The statute does not say that the purchasers of mortgaged land may take the penalty, but the original debtor only.
    
      Tides, for the tenant.
    The plea is that usury is secured in and hy the mortgage. The security is tainted by the usury forever.
    
      Cushing, in reply.
    The right of the penalty depends on the oath of the party.
   The Court held that the plea concluding with a verification was well, and that the matter pleaded was a sufficient bar.

Tlea to be received.  