
    Thomas Darling versus John Homer and Another.
    Where the defendant pleads that by the contract sued there is reserved more than lawful interest, and tenders his oath, it is sufficient for the plaintiff to reply that such interest is not reserved, and to swear to the same without averring that unlawful interest has not been taken or received.
    Assumpsit on a promissory note for 460 dollars, made by the defendants, and payable to the plaintiff.
    The defendants plead in bar, that by the note declared on is taken, reserved, and secured to the plaintiff above the rate of six pounds in a hundred, for the forbearance of the sum of 460 dollars actually lent, for one year; that is to say, &c., and that it was cor ruptly agreed by and between the plaintiff and J. Ridgway, one of the defendants, that the said note should be made, given, taken, and received as and for security for the payment of the sum lent, and the said usurious premium. And they tender their oath in verification of the plea.
    The plaintiff replies, that by the note declared on there is not taken, reserved, and secured to him above the rate of six pounds in a hundred, for forbearance of the sum lent for one year, in manner and form as the defendants have alleged in their plea; and this he is ready to verify by his own oath, according to the form of the statute, &c. Wherefore he prays judgment, &c. And he was sworn in court to the truth of his replication.
    The defendants demur generally to the replication, and the plaintiff joins in demurrer.
    
      J. T. Austin, for the defendants.
    By the statute of 1783, c. 55, § 2, it is enacted that when a defendant shall offer to make oath (and if required by the court, shall actually swear to the same), that there is taken, reserved, or secured by the bond, con- [ * 289 ] tract, &c. sued, above the rate of * six pounds in the hundred for forbearance, &c., the bond, contract, &c., shall be utterly void, and the debtor discharged, &c. “ Unless the creditor or creditors will swear that he, she or they have not, directly or indirectly, wittingly taken or received more than after the rate of six pounds in the hundred for forbearance or giving day of payment ; and that by such bond, contract, &c., there is not reserved, secured, or taken, more than after the rate of six per cent, for for bearance,” &c. If the plaintiff would prevail, he must swear to both the allegations. He has sworn to but one branch of the provision, and therefore has not brought his case within the statute.
    
      B. Parsons, for the plaintiff.
    The replication covers the whole allegation of the plea. The plaintiff can be held to no more.
   Per Curiam.

The statute contemplates two distinct reasons or causes, whereby a defendant may avoid his contract. The one, where usurious interest is reserved or secured by the contract; the other, where such interest has been received. The word “ and,” in the clause of the statute, relied upon by the defendants, is to be taken distributively. In the case before us, the defendant has pleaded that unlawful interest was reserved and secured by the note sued. The plaintiff, in his replication, has met and denied all that the defendants have alleged. If they relied on the other branch, they should have framed their plea upon it; and the plaintiff must have answered it, or have failed in his suit. Perhaps the defendants might have pleaded both the causes, and the plaintiff might have been held to reply to both. As it is, he has covered the whole plea, and the replication is adjudged sufficient.  