By the Court,

As we understand the facts of this case, the note sued upon was produced and offered in evidence on the trial, and the witness Hill only testified to having computed the- amount due upon it, over and above the indorsements. But the note itself was before the jury, who could determine for themselves whether that computation was correct or not.

But we do not understand upon what ground the circuit court withheld from the jury the evidence of the appellant. It appears that notice of his intended examination in his own behalf was given to the opposite party, and there does not appear to have been any objection taken that this notice was not reasonable and sufficient. He was a competent witness under the statute (chap. 137, R. S.), and his testimony went directly to sustain the defense of usury set up in the answer. We can see no reason for excluding it from the consideration of the jury. We infer from the charge, that the circuit court supposed this evidence to be inadmissible under the answer, and that it should be stricken from the case, for the reason that the appellant had not alleged in his answer that a tender was made of the principal sum loaned, on the day it became due. Wc have, however, held in several cases, that where any person set up usury in an action against him, under section 6, chap. 61, R. S., it was not necessary for him to aver in his answer a tender of the principal sum loaned, but that he would be entitled to the benefit of his defense by proving such tender at any time up to, or even by making the tender upon, the trial (Platt vs. Robinson; The Rock River Bank vs. Sherwood, and other cases unreported). This is sufficient to show the error the circuit court fell into, in supposing that a tender of the principal sum should be alleged to have been made on the day the note became due. But there was a' still farther decisive answer to the view taken by the circuit court of this question of practice, and of the *388admissibility of tlie appellant’s testimony. The appellant set n.p in his answer, and proved by his own testimony on the trial, payment of the principal sum loaned. This would seem to meet and fully overcome the objection which even the circuit court conceived existed to the pleadings, and the competency of this evidence under them. Eor surely if a party avers and proves payment of the sum loaned, the equity of his case is quite as strong as it would be to prove a tender merely. This appears quite too obvious to need comment. We, therefore, think the circuit court erred in excluding from the consideration of the jury the testimony of the appellant, as well as in its general charge as to the necessity of alleging a tender on the day the sum loaned became due.

There can be no doubt but the appellant was entitled to credit for the amount of the counter claim set up in the answer. He claimed that the respondent was indebted to him in the sum of $8 30, for lumber sold and delivered before the commencement of the suit, and there was no denial of this part of the answer.

The judgment of the circuit court is reversed, and a new trial awarded.