The opinion of the court was delivered by
Wheeler, J.I. The English statutes, 2 Geo. II, c. 22, s. 13, and 8 Geo. II, c. 24, s. 4, relating to set-off,-provided a method by which defendants having claims equal to or greater than those of the plaintiffs, might, in certain actions, defeat recovery by the plaintiffs, by pleading or giving notice of their claims, and offering to set off enough of them to satisfy the plaintiffs’ claims ; but did not, as our statutes do, provide for the recovery in the same actions, of balances due the defendants. Under those statutes, a separate action was necessary, to recover any excess due defendants. Hemmell v. Fairland, 3 Esp. 104. The plea of set-off in this case appears to have been framed according to the form of pleas in bar adapted for use under those statutes, and is pleaded as a bar merely to the plaintiff’s recovery, and not as a declaration of a claim on which to found a recovery by the defendant. When so pleaded, the plaintiff was not bound to demur to the plea, but had the right to treat it as a plea in bar merely, and not *54a declaration, and to reply to it as such ; and, as he needed only to put in issue the existence of the defendant’s claims as a bar to recovery on his own, and did not need to answer them as claims on which the defendant sought to recover, there was no occasion for him to comply with the statute relating to pleading matters of discharge to causes of action admitted to have once existed, for that statute applies only to actions of certain classes named in it, and although it might be held to apply to declarations in offset of those classes, it could not with any propriety be held to apply to pleas strictly in bar. Gen. Sts. c. 33, s. 15. The objection of the defendant that the plaintiff’s evidence, which went to show that the claims the defendant set up did not exist in fact, was inadmissible for want of plea or notice under the statute, was not well taken.
II. According to the facts that appeared on the trial, as stated in the bill of exceptions, neither the plaintiff himself nor any one for him has yet in fact paid any more than legal interest to the defendant. The plaintiff himself has only given his notes, which are mere promises to pay, and procured Pendar to indorse them ; and he, not the plaintiff, procured Ramsdell to agree to pay them for his release from the indorsement. Neither has paid them yet far enough to pay any part of them that is for extra interest. If the defendant should undertake to collect them of the plaintiff, to that extent he could defend. Pendar is released; and if Rams-dell should pay them, he would do so for the plaintiff, and he would then be entitled to recover it back. If no one pays that part of them, the defendant will have no usury in his hands. Grow v. Albee, 19 Vt. 540. The defendant was therefore entitled to have his request to chárge complied with.
Judgment reversed.