#### Jennings vs. Wilamowiecz.

In an action of assumpsit, upon a promissory note, in the circuit court, evidence of usury is not admissible under the general issue — By the Rev. Stat. chap. 116, sec’s 74-5, usury must be specially pleaded; and the plea verified by affidavit.

Writ of Error to the Circuit Court of Pulaski County.

Assumpsit by Ignatius Wilamowieez against Richard T. Jennings, upon a promissory note, executed by the defendant to Baker, endorsed by him to Brown & Fenno, and by them to plaintiff. The cause was determined in the Pulaski circuit court at the April term 1847, before Clendenin, judge.

The defendant pleaded non-assumpsit, to which issue was taken, the cause submitted to the court, sitting as a jury, and finding and judgment for plaintiff. The defendant moved for a new trial upon the ground that the court refused to permit him to introduce evi-*278deuce, under the general issue, to show that the consideration for which the note sued on was given, was usurious, the court overruled the motion, he excepted and took a bill of exceptions setting out the evidence offered by him to prove the usury, which was excluded.

Hempstead and Lincoln, for the plaintiff.

The plaintiff in error offered to prove that the note was tainted with usury, with requisite certainty of time, place and circumstance. The court decided that the defence could not be made under the general issue and refused to receive it. It is usual and perhaps a better practice to plead usury specially. In actions on specialties we admit that it must be so pleaded, (2 Saund. PI. and Ev. 895. 5 Co. 119. Comyn on Usury 201,12 Mass. R. 26.) But in actions of assumpsit on simple contracts, it is equally well settled that this defence may be either specially pleaded or relied on by way of defence under non-assumpsit. 1 Chittys PI. 575,519. 1 Wils. 305. Rent vs. Lowen, 1 Campb. 177.

The right of the defendant to prove under the plea of non-as-sumpsit, that the instrument was given upon an usurious consideration, is sustained by the highest authorities. Andrews vs. Pond, 13 Peters 80. Bernard vs. Saul, 1 Stra. 498. Bernard vs. Fitz-house, 9 Mod. 359. Taylor vs. Herbert, 1 Freem. 367, pi. 472. Levy vs. Gadsby, 3 Cranc/i 186, 1 Cond. R. 486. 1 Ckitty’s PI. 511. Bird vs. Pierpont, 1 J. R. 124. Cuyler vs. Robinson, 3 Day 68. Com. Dig. Pleader 2, sec. 7.

This is a promissory note, a simple contract, and the legislature, so far from abolishing the distinction between sealed and unsealed instruments, has preserved it. Our courts have properly kept up the same distinction (Cross vs. The State Bank, 5 Ark. 525. Bertrand vs. Byrd, 4 Ark. 195), and we claim that this case falls within the common law principle and that the court erred in refusing the evidence.

Watkins & Curran, contra.

At common law, before the late rules in England, usury could be given in evidence under non-as-*279sumpsit in an action upon a promissory note ; but in actions upon bonds usury must always have been pleaded specially. Conrnjn Big. Tit. Pleader, 2 W. 23. 2 Saund. PI. Sf Ev. 895. 1 Saund. Rep. 295 a.

We submit that by our statutes the rule in respect of promissory notes is entirely changed; and that the common law distinctions between bonds and notes in relation to pleading and evidence are abrogated: in that respect, at least, notes are placed upon a footing with bonds. At common law it was the grade of evidence that determined the character of the pleadings. A sealed instrument proved itself. Its execution might be denied, but-its consideration could not be impeached. Under our statute the consideration of sealed and unsealed instruments may both be enquired into; and therefore there is a perfect equality in the grade of evidence. The production of each proves itself and the consideration for which it was given. This consideration in both instruments is liable to be impeached in the same way, but he who impeaches them, must do it by plea supported by añida vi t. Beebe et al. vs. The R. E. Bank, 4 Ark. R. 124.

All pleas impeaching the consideration of any instrument, whether under seal or not must be supported by affidavit. Rev. St. p. 629, sec. 75.

This section of the statute is applicable to the defence of usury. Vinsant vs. Hoicel, ante.

Oldham, J.

This was an action of assumpsit brought by the defendant in error against the plaintiff in error upon a promissoiy note. The defendant below appeared and pleaded the general issue without affidavit, and, upon the trial, offered to prove that the note sued upon was void for usury: but the evidence offered was rejected by the court. The refusal of the circuit court to permit evidence of usury to be given under the plea of non-assumpsit, not verified by affidavit, is assigned for error in this court.

The determination of this question depends alone upon our statutes and the previous decisions of this court bearing, upon the subject and presents no difficulty. It is immaterial to the question *280to inquire whether at common law the defence of usury should be specially pleaded, or may be given in evidence under the general, issue, for we. have a statute specially providing that “all pleas impeaching the consideration of any instrument or note in writing, whether sealed or not, shall be supported by the affidavit of the defendant or some other person for him, stating that the facts set forth in such plea are true, so far as detailed as such from his own •knowledge, and that he believes them to be true so far as related from the information of others.” Rev. St. ch. 116, sec. 75. Under this statute it is not only necessary that the facts constituting the usurious agreement should be specially set forth by the plea, but that they should also be verified by affidavit. This question was incidentally presented and decided at the last term in Vinsant vs. Howell, ante. Judgment affirmed.