By the Court,
Cowen, J.The special counts in the declaration and the ■ replications. all set up substantially the same ground of action. The defendants cannot be made liable till the three conditions precedent are shown to be fulfilled or executed. Taylor v. Otis Bullen, 6 Cowen, 624. Cumpston v. McNair, 1 Wendell, 457: If the plaintiffs could collect the note by setting it off against what they *258owed Simmons, or by voluntary payment by him, or by due course of law, they have no claim. It was incumbent On them to use due diligence in the pursuit of all thesé methods before they could resort to the defendants. On Simmons refusing to pay or set off, he was compellable by suit, which the plaintiffs were bound to show they had brought in due season, and failed without any fault of their own. Moakley v. Riggs, 19 Johns. R. 69. . Kies v. Tifft, 1 Cowen, 98. Thomas v. Woods, 4 id. 173. This they should have shown, with times and other particulars, such as the law would recognize as due diligence. In that they have altogether failed.
No adequate excuse for the failure is shown. The insolvency of Simmons was no excuse, Moakley v. Riggs, 19 Johns. R. 71, 2, especially in a case like this, of set-off, and wherein the defendants had agreed to bear the expense. Thomas v. Woods, 4 Cowen, 173. Taylor v. Bullen, 6 id. 624. The case of Morris v. Wadsworth, 11 Wendell, 100, does not’apply; the defendants could not escape the stipulated expense by the refusal to pay "it, according to the agreement ; nor would such a refusal and a prohibition to prosecute, work a" rescission of the contract, and this especially so late as 1836.
The releasing of-the plaintiffs from all obligation to prosecute was a non sequitur. It did not per se make the defendants liable, even admitting that it had been the day after the note was sold. It might well dispense with o'ne .of the conditions in such case, viz. a prosecution by the plaintiffs; but they might still have had ample means of set-off by way of defence against a suit by summons. The -want of such means without their own fault is not shown. It is merely said they were unable to set off; but that might have been by their own fault. It is sufficient, however, to say that the conditions were all gone by loches, for aught that appears, before the release was given. Indeed, taking the dates given by the plaintiffs, loches appear affirmatively on their own showing.
The plaintiffs’ counsel, however, insists that the pleas are bad in substance. They are undoubtedly so in form, as *259amounting to the general issue; but that is an objection which should have been raised by special demurrer. It is supposed that the balance of the $800, beyond the face of the note, appears by the second, plea to be recoverable under the money counts as money had and received, inasmuch as it was unconscientious to receive $800 for $587 60. That we cannot infer. The note might have been a very valuable purchase to the plaintiffs, and worth much more than its face. They are averred voluntarily to have agreed to pay that sum, and nothing unconscientious appears or is to be implied. If there was any such thing, it should have been shown by the replication. Neither ignorance nor mistake nor fraud is to be implied. The payment of such % balance would come nearest to usury, and for an excess usuriously paid, an action for money had and received would lie; but here is no loan, no forbearance shown ; and if a man will give $800 for $500, voluntarily, there is no principle on which ft can be recovered back. It is valid as a gift] It may be added, that the defendants here undertook for expenses which might have been very considerable, and might call perhaps eventually, for a payment of more than the face of the note.
x It is insisted that the third plea is bad, because it answers as to only part of the $800 of the third count. It alleges that the plaintiffs paid the $800 as in the second plea, but adds that in consideration of $587 60 paid for the note, the defendants agreed as in that plea set forth. ■ There may no| be enough in the additional matter to cover the whole '$80Q in the third count ; but, for aught I see, the previous matter is as full as the second plea. " Rejecting.the,special addition, as I think we may, the plea is then valid in substance ; and however it may fail in form, there is no special demurrer to reach the defect.
There must be judgment for the defendants on all the demurrers, without leave to the plaintiffs to amend ; the cause having been tried on a plea of non-assumpsit, and a verdict rendered for the defendants. Hallett v. Holmes, 18 Johns, R. 28, 30. Cleveland v. Rogers, 6 Wendell, 438.
Judgment accordingly.