The statute on the subject of usuryps express, in requiring the deduction demanded by the plea *514to which the defendant swears, or offers to swear, “ unless the creditor will swear that he has not, directly or indirectly, willingly taken or received more than after the rate of six per cent per annum,” &c. N. H. Laws 134.

It has been held that this statute was not applicable to the case in which the plaintiff is a bond fide holder of the note in suit, having received it for value before its maturity, and without notice of the usury. In such case the plea is dismissed, and no replication is required. Forbes v. Marsh, 3 N. H. Rep. 119; Williams v. Little, 11 do. 66.

But such is not the present case. The note and mortgage came into the hands of Tyler, Eastman and Dutton overdue, and therefore subject to the defence set up. The case therefore falls within the provisions of the statute, and the plaintiff must reply according to the usual practice.

Motion overruled, and leave to reply granted.