This is an action of debt to recover threefold the amount of the interest paid by the plaintiff to the defendant in pursuance of a usurious contract. The plaintiff at the trial was admitted to testify, the defendant objecting, and the court are of opinion, that he was rightly admitted, in conformity with the fourth section of the'Rev. Sts. c. 35. The question, whether unlawful interest had been taken, was put in issue by the pleadings. The declaration alleges, that the whole sum of fifty dollars was paid by the plaintiff to the defendant, as interest on the sum lent. It is true, that it is also alleged in the declaration, that when the loan was first made, the plaintiff gave his note to the defendant for the sum of fifty dollars, and that the defendant thereupon delivered to the plaintiff the sum of forty-eight dollars, reserving the sum of two dollars as interest on said sum. How the *141fact was does not appear, for the evidence is not reported. But, however this may he, the sum is trifling, and if the plaintiff will release six dollars from the amount of his judgment, there can be no reason for granting a new trial to correct this error.
The defendant’s counsel rely on the case of Brickett v. Minot, 7 Met. 291. But there is a material distinction between that case and this. In that case, no usurious contract was set out in the declaration. The contract set out was for the payment of lawful interest only, and the averment was, that the plaintiff had afterwards paid to the defendant unlawful interest, from time to time; but it was not averred, that these payments were made in pursuance of any contract or agreement. And that case was decided on the ground, that no such usurious contract or agreement was set out in the declaration, and that the payments were to be considered as voluntary. In the present case, all the payments of interest are alleged to have been in pursuance of a previous agreement.
Another exception was taken to the ruling of the court at the trial. The defendant objected to the declaration for duplicity, and this objection was overruled, and we think rightly ; for duplicity can be taken advantage of by special demurrer only, according to a well known rule of pleading; and now, special demurrers being abolished, this objection cannot be maintained in any case.
But if the declaration were insufficient, the defendant cannot except to the ruling of the court, as he may have the same advantage of his objection on a motion in arrest of judgment. If a declaration is clearly bad, the court may express an opinion of its defect, that the plaintiff may have an opportunity to move for leave to amend; but this is within the discretion of the court, and is not liable to exception.
Exceptions overruled.