Jones & Co. v. O'Donnell. At the trial of the issue, the verdict was for the plaintiff, and thereupon the defendant asked leave to plead over to the action, a plea of usury, which the court refused to allow unless the defendants would consent that judgment might be rendered for the sum originally loaned, with interest thereon; thereupon, as stated in the judgment entry, came a jury, who found for the plaintiff, and assessed his damages, for which judgment was given. It is now assigned as error, that the court erred— 1. In sustaining the demurrer to the first plea in abate ment. 2. In sustaining the demurrer to the rejoinder to the replication to the second plea. 3. In refusing permission to the defendants to plead over after the determination of the issue joined in the third plea. 4. In submitting the cause to the determination of a second jury, and refusing permission to plead. 5. In not refering the demurrer to the replication, which is bad, inasmuch as it concludes to the country. J. THORINGTON, for the plaintiff in error. GOLDTHWAITE, J.-1. The first plea in abatement was properly overruled, because the defendant cannot traverse or put in issue the grounds on which the process is sued out. The statute, it is true, uses the term original attachment, but we have repeatedly held, these ancillary proceedings are governed by the same rules. The distinction pointed at by the statute is, between original and judicial attachments. 2. The demurrer to the rejoinder to the replication to the third plea presents the question whether the alteration of the term of a court by statute, carries with it and saves all process then issued, and returnable to the term as fixed by the pre-existing laws. We do not consider this a debateable matter, for every one must take notice of the periods at which courts are to be holden; and process, continuances, and other matters are understood, not with reference to the statutes as they are when the proceedings may be originated, but ac Jones & Co. v. O'Donnell. cording also, to such changes as the sovereign authority may direct. In Walker v. The State, 6 Ala. Rep. 350, we considered the surety to a recognizance, as bound to take notice of the change of time in holding the term of a court, and that decision seems to be conclusive of the matter now presented. The demurrer was properly sustained. 3. When a demurrer to a plea in abatement is sustained, the formal judgment is one of respondeas ouster, but in practice with us, this is rarely, if ever, entered, and the judgment entry merely recites, that the demurrer was overruled. If the defendant wishes to plead over, he is permitted to do so, and if he does not, no injury accrues. [Massey v. Walker, 8 Ala. Rep. 167.] If the parties go to trial upon an issue arising upon a plea in abatement, then the judgment is final if against the defendant, and the damages may be assessed. [Chitty's Plead, 403.] This is said to be the consequence of pleading a false plea, the effect of which, if found true, is to abate the suit. There was then no error in refusing to permit the party to plead over to the action, and if again submitted to the jury on the general issue, or any special defence, no injury has accrued to the defendant. But if, as the defendant supposes, and as the entry indicates, the cause was submitted to another jury, after the first had rendered their verdict on the issue in abatement, it is not an irregularity of which the party can complain, as no injury to him could possibly result from it. The other points raised, are too unimportant to require consideration, as there is no question the erroneous conclusion of the replication to the country is not a ground of general demurrer. Judgment affirmed. Gee v. Bacon. GEE v. BACON. 1. The bank notes of the Pennsylvania Bank of the U. S., cannot be set off to a note sued upon by the trustees of the Bank, to whom it had been assigned for the payment of its creditors. 2. G. having large transactions with the Penn. B. U. S. by borrowing money, made a settlement with an agent of the Bank, and discharged the principle, and for the payment of usurious interest, transferred notes on three persons, and executed a guaranty for their payment. These notes were by the Bank transferred to trustees, for the payment of creditors, and B, as the agent of the trustees, reduced the notes to judgment. G then made an agreement with B, by which he obtained the control of the judgments, and took up his guaranty, and executed his own note for the amount due, B being ignorant of the usury-Held, that there was a sufficient consideration for the note, and that it was not affected by the usury in the original contract. Error to the Circuit Court of Wilcox. ASSUMPSIT by the defendant in error, against the plaintiff in error, on a promissory note made by him, for $7,226 20. payable to his own order. The plaintiff alledged an indorsement, and declared upon it in the usual mode. The defendant pleaded non assumpsit, want of consideration, and a special plea, that the promissory note sued on, was given for the loan and forbearance of $20,000, for the space of twelve months, and that the whole amount specified in said note, is interest given for the loan and forbearance of the said sum of money for twelve months, which exceeds the rate of eight per cent per annum; whereby and by force of the statute, &c., the said note became, and was wholly void, &c.; and for further plea, actio non, &c. because he says, the Pennsylvania Bank of the United States, is the real party in interest in this suit, and the present plaintiffs sue on this note, as the mere trustees, and assignees of said Bank, without interest. They have never given any consideration for said note, and have no interest in this suit, or in the recovery expected, ex Gee v. Bacon. cept as such trustees; and that said Bank, before and at the time of the commencement of this suit, to wit, at the county aforesaid, was, and still is, indebted to him, the said defendant, in the sum of ten thousand dollars, for so much money by said bank had and received, to and for the use of said defendant, and also, for divers goods, wares, &c., notes, bills of exchange, sold and delivered by said defendant to said bank, at its request; and for money advanced, &c. &c. which sums of money, so due and owing from said bank to said defendant exceeds the damages sustained by plaintiffs, by reason of the non-performance by him, said defendant, of said promise, &c. out of which said sum of money, said defendant is ready, and offers to set off and allow to said plaintiffs, the full amount of said damages, &c. The plaintiff took issue on the three first pleas, and demurred to the plea of set off, and his demurrer was sustained by the court. Upon the trial of the issues, as appears from a bill of exceptions, it was in evidence, that one George Poe, acting as the agent of the bank, had lent to defendant various sums of money, at a usurious rate of interest. That on a settlement of these matters, the defendant paid Poe in money, and in his note of $2000, all of the principal, interest and exchange due on account of the money borrowed, leaving a balance of about $6000, which was understood as constituting the usurious interest, contracted for in these transactions. For this balance, defendant assigned over to Poe, as collateral security therefor, sundry notes, and gave at the same time a guaranty for their payment. After this last transaction, Poe ceased to be the agent of the Bank, and the notes and the guaranty were assigned by the bank to the present plaintiffs as trustees, and one Barney succeeded Poe as agent, and was also agent of the trustees. The notes so transferred by the defendant were put in suit, and judgment obtained thereon, and an agreement was then made between Barney and the defendant, that the latter should take up his guaranty, and give his note for the amount of the notes so in judgment, and the interest thereon, and have the use and control of the judgments, and the money to be collected thereon. The note sued on, was Gee v. Bacon. In all these ar executed to carry this contract into effect. rangements, Barney was acting as the agent of the trustees. The court charged the jury, that if the facts were as above stated, the defendant could not now set up usury as a defence to this action, unless he also showed, that at the time of the last mentioned transaction, Barney was informed, or notified of the fact, that the notes had been transferred, or the guaranty given, for a usurious consideration. To this charge the defendant excepted. The errors assigned are the sustaining the demurrer to the plea of set off, and the charge given to the jury. EDWARDS, for plaintiff in error. The plea of set off, was a good one. The English courts, looking at the real parties to the cause, have always allowed off sets against the person in interest. [Bab. on Set Off, 60.] Such is also the law. of this court, (6 Ala. Rep. 343,) and such is now the rule of decision in New York. [13 Johns. Rep. 9; 5 Wend. 342.] The $6,000 was clearly usurious, and if it had been paid, could have been recovered back. [15 Mass. 96; 6 Johns. C. C. 95.] This money was the sole consideration of the note in suit, which is but a substitute for it. [1 Porter, 94; Chitty on Bills, 109; 1 Peters, 43.] The present plaintiffs are the mere representatives of the Bank, being naked trustees without an interest, and having paid no valuable consideration, and are therefore affected by the same considerations which would operate on the Bank. PECK, Contra. If the set off pleaded in this case be allowed, it must be in virtue of our statute of set off. That statute allows mutual debts to be set off, and none others. A set off is in the nature of a cross action, (5 Ala. Rep. 367,) and therefore cannot be pleaded, unless the party could maintain an action upon it in his own name. There are exceptions to this rule. Such was the case of Bowen v. Snell, at this term. That was the case of a fraudulent device to prevent the off set. In this case, the defendant could not have brought an action against the plaintiffs in error, upon the set off, nor was the action brought in the name of a simulated plaintiff, for the purpose of defeating |