Plumer v. Drake

5 N.H. 556

Opinion

By ike court.

It is clear, that in this case, if Tilton were dead, the plea of the defendant, in its present shape, could not be received. The words of the statute are express. The creditor being alive, the debtor is permitted to sustain his plea by his own oath, unless the creditor will, upon his oath, deny the usury. And when the creditor is non compos mentis, we think the case stands on the same ground as if he were dead.

The averment in the plea, that the creditor is alive, may be proved by the oath of the defendant. We have so decided in this case. And we are of opinion, that a replication stating the creditor’s want of capacity to testify, may be sustained by the oath of the plaintiff.