The opinion of the court was delivered by the chief-justice.

This is an action of debt on a bond. *503The defendants have pleaded first, non est factum; and secondly, that the bond was given upon a corrupt and usurious contract. The plaintiff moves to strike out the second plea, not because usury is not a legal bar, but because the defence set up is not well pleaded. It is objected that the plea does not allege or specify any of the particulars of the contract, nor the sum to be forborne, nor the sum to be paid for such forbearance; and that the plea is, in other respects, uncertain, &c.

These may be very sufficient and fatal objections to the plea, on a demurrer ; but the counsel for the plaintiffs, have referred us to no case in which the court has gone so far, as to settle the legal accuracy of a special plea in bar, upon a mere motion to strike out the plea. Where it is plainly frivolous and trifling, or where the subject matter of the plea, although accurately and technically sot forth, according to the soundest rules of special pleading, is no answer to the declaration, or excluded by a positive rule of law, it may, no doubt, be stricken out. Anonymous, 2 Halst. Rep. 160; Stadholme, Exr. v. Hodgson, 2 T. R. 390; In the case of Westervelt v. Merenus, 2 Penn. Rep. 693, the defendant, after pleading title, and giving boud in the court for the trial of small causes, put in, to an action brought in this court for the same trespass, the plea of not guilty; and it was stricken out. In Coryell v. Croxall, 2 South Rep. 764, the plea of payment to the payee of the note, before notice of the endorsement to the plaintiff, was struck out, because the note was payable without defalcation or discount. So in The Inhabitants of the Township of North Brunswick v. Booraem, & al. 5 Halst. Rep. 257, the defendant pleaded that the action was not prosecuted by the plaintiffs on record, but by a third person. The plea was struck out, because the facts set forth were not the subject matter of a plea. But in the case before us, the defendant sets up usury, which, if well pleaded and true, is not only a lawful plea, but a good defence to the action. Whether it be a formal and good plea of usury, is not necessary to be considered now. The plaintiffs are at liberty to demur to it; and then the defendants may apply, if they think proper, for leave to amend, Thelluson v. Smith, 5 T. R. 152. If a plea in bar, is not adapted to the nature of the action, or conformable to the count; as if nil debet be pleaded to an action of assump*504sit, as was done in Stafford v. Little, Barnes’ Notes, 257; the plaintiff may treat it as a nullity, and sign judgment, or move to set it aside. But if the defence is a good one, though badly pleaded, the plaintiff must demur.

Ford, J. concurred.

Ryerson, J. expressed no opinion, having been of counsel with one of the parties before his appointment.

Motion denied.

Disapproved in Copperthwait v. Dummer, 3 Harr. 259 ; Hogencamp v. Ackerman, & Zab. 137 ; Cited in Mulford v. Peterson, 6 Vr. 134.