
    James B. Williams vs. Hickman & Smith.
    Nashville,
    January, 1831.
    Where a plea of usury is sworn to by the defendant, it is evidence for him, unless replied to by the plaintiff upon oath.
    Williams instituted an action of covenant in the county court of Davidson county, against the defendants, upon a bond executed by them, jointly, with Roger B. Sapping-ion. They pleaded — 1st, covenants performed; 2d, that they were securities for Sappington; and that usurious interest, to a large amount, was included in the note, hy reason of a corrupt agreement between Sappington (their principal) and the plaintiff. The facts constituting the usury are fully set out in the plea, which was sworn to by the defendants.
    The plaintiff, Williams, joined issue upon the plea of covenants performed, and demurred to the plea of usury. The case was then adjourned by consent, to the circuit court, where the plaintiff obtained the permission of the court to withdraw his demurrer to the plea of usury, and file a replication, which was done; but the replication was not supported by his affidavit. Upon the trial of the cause, the court instructed the jury, that the plea of usury, being sworn to by the defendants, was evidence of the truth of the plea, under the act of 1819, ch. 32, unless it was l'eplied to upon the oath of the plaintiff.
    Under this charge, the jury returned a verdict for the plaintiff, excluding the usurious interest mentioned in the plea. The plaintiff excepted to the charge of the court, and appealed in error to this court.-
    
      Thompson-, íor the plaintiff in error.
    
      G. tí. Yer'ger for the defendants,
   Per Curiam.

The act of 1819, ch. 32, was intended by the Legislature, to make the plea of usury, when sworn to, evidence for the defendants, unless the plaintiff’s replication to the plea was also sworn to. This is the only sound construction of the act. When the plaintiff does not reply, or when he replies without an affidavit of the truth of the replication, the truth of the plea is admitted, when the replication is sworn to, and denies the truth of the plea, it then devolves upon the defendant to prove it, as he would have been bound to do before the passage of the act.

The judgment of the circuit court must be affirmed.  