The opinion of the court was delivered by
Ross, J.The borrowing of the money and the giving of the mortgage to secure its payment July 25, 1872, was a transae*68tion distinct and separate from the like transaction August 11,1874, between the same parties. Therefore the loss to the defendant by failure to obtain payment of the first loan, in full by taking the premises mortgaged April 12, 1879, had no connection with its receipt of usury paid by him in the second transaction. The defendant can not avail itself, in defeat of this action, of the balance due it from the plaintiff arising out. of the first transaction by declaring for that balance in set off, or by pleading so much of it as is necessary for that purpose in bar of this action. The cause of action for this balance arose immediately" upon its receiving the mortgaged premises, on April 12, 1879. It is conceded by the defendant that this cause of action has become barred by the statute of limitations., but it contends that by pleading the sum due it growing out of the transaction of 1872 strictly in bar of this action, without claiming to recover any balance, it avoids the effect of the. statute of limitations, as th'at statute applies to actions and not to pleas. We do not think this contention can be sustained. The sum due the defendant from the transaction in 1872, under a plea strictly in bar, must first be established and then set off against the sum found due the plaintiff for usury paid on the transaction of 1874. In legal effect its plea in bar is an action to enforce the payment of so much of the sum which may be found due it from the plaintiff, on his indebtedness created by the note and mortgage of 1872, as may be required to extinguish the usury which it received in 1883, which was included in the plaintiff’s note secured by the mortgage of 1874. ’ While usury may be treated a technical payment on the indebtedness on which it is .paid, it cannot be treated as such payment on another separate, independent transaction. Ewing, Exr., v. Griswold, 43 Vt. 400. It does not fall within the principle of the decision of Tinhham v. Smith, 56 Vt. 187, which applies to a technical paymenth.ipon the identical indebtedness upon which the suit is brought.
The judgment of the County Court is affirmed.