Plummer v. Drake

5 N.H. 151

Opinion

By the court.

It has long been settled in this state, that in a suit upon a note in the name of an endorsee against the maker, the latter may conclude a plea of usury with an offer to verify it by his own oath ; and that the endorsee may reply that there has been no illegal interest secured or taken, and conclude with aa offer to verify the replication by the oath of the payee. But by the express letter of the statute, a defendant can, in these cases, verify his plea by his own oath, only when the payee of the note is alive. When the suit is in the name of the payee it appears by the record that the payee is alive. But when the suit is in the name of an endorsee it cannot appear, that the payee is alive without an averment of the fact, and we are of opinion that the plea in this case must be adjudged insufficient for the want of such an averment.