In the other suit between the same parties, upon the note secured by the mortgage, the judgment being against the plea, the defendant, under the general issue, offered to prove the same usury to establish the want of consideration to the extent of ten dollars; but the court decided that the question of usury must be regarded as res judicata, and that such defence was inadmissible. Divoll v. Atwood, 41 N. H. 443.
If properly pleaded or shown, this judgment, although rendered since the commencement of this suit, would, we think, on the principles established in that decision, be a conclusive answer to this plea. The matter of the plea is the same in both cases, and in both, probably, and certainly in the former, directly in issue and between the same parties. The case of Betts v. Starr, 5 Conn. 550, is directly in point, to the effect that a judgment in favor of the plaintiff, in a suit on the notes where the defence was usury, is conclusive in an action of ejectment upon the mortgage. *450The same doctrine is held in Bigelow v. Winsor, 1 Gray 299, 303; Burke v. Miller, 4 Gray 114, 116; Burnett v. Smith, 4 Gray 50; White v. Coatsworth, 2 Seld. 137. Nor is it essential tbat the estoppel or bar should exist before the commencement of the suit. Morgan v. Barker, 26 Vt. 602.
In this case, however, the replication states the plea and the answer upon oath in the other suit, but it does not state any judgment, and the court cannot take notice of it judicially. The question of usury must, then, be regarded as still pending in the other suit, and that alone is no sufficient answer to the plea in this case; the replication must, therefore, be adjudged insufficient.
But it is said that the plea is bad in substance; and as the demurrer properly raises the question, it becomes necessary to examine the plea. The objections are, that usury cannot be pleaded in a suit on a mortgage, and that the plea does not tender the oath of the defendant. The first objection, we think, cannot be sustained. By the law of 1791 (Ed. 1829) 134, it is provided that the deduction shall be made, upon showing the usury, in case of a suit “ on any bond, contract, mortgage, or any agreement given or made hereafter for the payment of any money, goods, or personal estate,” &c. By the Revised Statutes (ch. 190, sec. 3) the terms are changed, and the provision is, “ Where any person, for the recovery of any debt or damages, shall be sued upon any instrument hereafter made,” &c.; but we think that this is a mere revision of the former law, and not designed to affect the rights of the defendants in suits upon mortgages, any more than upon bonds or other contracts ; and we think that a suit “ for the recovery of a debt or damages upon any instrument hereafter made,” must be understood to include a suit upon a mortgage, as well as the note which is secured by it. There is nothing in the nature of the case that furnishes any substantial reason for such a distinction, and for more than fifty years no such distinction existed. Gunnison v. Gregg, 20 N. H. *451100; Briggs v. Sholes, 14 N. H. 262; Ladd v. Wiggin, 85 N. H. 421.
As a plea under the statute, however, we think it is not sufficient. The law provides that if the debtor will come into court and “offer to make óath,” &c., “a deduction shall be made, unless,” &c. This he has not done, and therefore would not be entitled to the deduction, by the failure of the plaintiff to make oath. But it is said that the plea is sufficient to raise an issue to be tried by the jury; and the inquiry in the first place is, whether the party can be entitled to the deduction by any other mode of proof than the one specifically provided hy the statute.
"Where the statute penalty exceeds the amount lawfully due, it is held in- this State that the usury may be pleaded in bar generally. Gibson v. Stearns, 3 N. H. 185; R. R. v. J. M., 3 N. H. 143, 144. In this latter case it is said, by Richardson, C. J., that it has never been supposed that the power to make a deduction depended upon the mode of proof, — but that it has been repeatedly decided that where the usury is found by the jury, the deduction maybe made. So in Kimball v. Abbott, 5 N. H. 394; and Parker, C. J., in Tappan v. Prescott, 9 N. H. 531-534, recognizes the doctrine of Gibson v. Stearns. So in Gunnison v. Gregg, 20 N. H. 100, it is held that a purchaser of an equity of redemption, in a suit on the mortgage, may plead usury in bar when the penalty exceeds the sum lawfully due. And the same authorities sustain the doctrine that where the penalty is less than the sum due, the proof of usury is not confined to the mode specially given. The ground upon which the plea in bar is sustained is, that the whole debt is forfeited; and, upon the facts being stated, and proof by the mode pointed out by the statute, or by demurrer, or verdict of the jury, the defence is maintained. So it is settled that an action for money had and received will lie to recover back illegal interest; Willie v. Green, 2 N. H. 333; Cross v. Bell, 34 N. H. 82; and yet, no provision for *452such recovery is found in tbe statute. But the taking of suck interest is made illegal, and this common law remedy is recognized; and if tbis be right, it must be regarded as quite decisive on the question before us.
"We hold, then, that the usury may be pleaded as a de-fence, without pursuing the mode specially provided by the statute ; and the only remaining question is, whether the plea is defective in substance, — for only such defects are drawn in question by the pleadings. 1 Ch. PI. 668. No objection is taken to the substance of the plea, except wdiat arises out of the want of conformity to the statute mode; and we think that in substance it conforms to the suggestions of the court in Briggs v. Shoks, 14 N. H. 262, though in point of form it may not in all respects. Unless, then, the plaintiff shall desire to amend, the defendant is entitled to
Judgment on the demurrer.