This was an action of assumpsit brought by the defendant in error against the plaintiff in error upon a promissoiy note. The defendant below appeared and pleaded the general issue without affidavit, and, upon the trial, offered to prove that the note sued upon was void for usury: but the evidence offered was rejected by the court. The refusal of the circuit court to permit evidence of usury to be given under the plea of non-assumpsit, not verified by affidavit, is assigned for error in this court.
The determination of this question depends alone upon our statutes and the previous decisions of this court bearing, upon the subject and presents no difficulty. It is immaterial to the question to inquire whether at common law the defence of usury should be specially pleaded, or may be given in evidence under the general, issue, for we. have a statute specially providing that “all pleas impeaching the consideration of any instrument or note in writing, whether sealed or not, shall be supported by the affidavit of the defendant or some other person for him, stating that the facts set forth in such plea are true, so far as detailed as such from his own •knowledge, and that he believes them to be true so far as related from the information of others.” Rev. St. ch. 116, sec. 75. Under this statute it is not only necessary that the facts constituting the usurious agreement should be specially set forth by the plea, but that they should also be verified by affidavit. This question was incidentally presented and decided at the last term in Vinsant vs. Howell, ante. Judgment affirmed.