By the Court,
It is unnecessary for us to determine in this case whether this court would, under any circumstances, take notice of an understanding or arrangement, verbal or written, between the court before which an action is pending and the counsel for one of the parties to it, which, like that sugested in the affidavit of the appellant’s counsel, was arrived at or made in the absence and without the assent of the opposite party or his counsel, and relates to the time of the trial, the continuance or other disposition of such action; and whether, if we could take such notice, we could reverse the judgment or award a new trial in such action, on account of a violation of such understanding or arrangement, on the part of the judge with whom the same was had. We may be permitted to suggest that such a cause of error would, to say the least, be a very impressive novelty in legal practice. And if any court should be in the habit of thus forestalling its own action, it may well be doubted whether the arrangements or understandings would be of such a nature that their observance could be enforced by an appellate tribunal. They would be contrary to the legal rights of the opposite party, and opposed to all the rules of judicial propriety and decorum. Neither the counsel nor the party would be justified in seeking, obtaining or relying upon any such intimations. But nothing of the kind is established here, and therefore it is not a matter to be discussed. The most that can be said is, that the affidavit very obscurely hints that the presiding judge, in reply to the application of counsel, intimated that the trial would be postponed. It is admitted that the judge did not say that it would. The affair took place in open court, whilst the mind *90of th.e judge was undoubtedly occupied with the transaction . and dispatch of other business. It was purely conversational in its character. In this position of the case, and upon the statements of this affidavit, it would be strange indeed if we were to say that the counsel was deceived or misled. We cannot do so. Uor can we indulge in any presumptions against the fairness or impartiality of the judge. We must presume that he did what was just and proper. The matter occurred in his presence and hearing, and he must know much better than we possibly can, what final disposition of it, under all the circumstances, was most equitable and just between the parties. It was therefore a subject for Ms discretion and control, and not ours; and we cannot interfere with the judgment on account of it.
The counsel for the appellant discussed, at some length, the sufficiency of the facts set forth as a distinct and separate defense, in the fourth subdivision of the answer, and also the sufficiency of the reply of the plaintiff to that part of the answer; but no such questions are before us for decision on tMs appeal, and consequently we can express no opinion upon them. The matters stated in that portion of the answer do not constitute a counter-claim, or any tMng in the nature of one. They are, if good, but general matters of defense merely, and being such, no reply to them by the plaintiff was necessary or proper. They are to be deemed traversed in law, without any formal or written replication from the plaintiff. It is only when the answer contains new matter constituting a counter-claim, that a written denial or reply on the part of the plaintiff is required or permitted. E. S., chap. 125, secs. 15 and 82; Roys vs. Lull, 9 Wis., 324. That part of the answer not having been demurred to by the plaintiff, its sufficiency cannot here be inquired into. The reply to it being unnecessary and improper, it is immaterial whether it be good or bad. But if it were proper and permissible, its regularity or sufficiency in form or substance could not here be questioned, because the defendant did not demur to it, as he should have done under the provisions of sec. 17 of the same chapter. The case was brought to trial, and judgment rendered in the court below, in the absence of *91the appellant and Ms counsel. No objection was there made either to the form or substance of the answer or reply; no . testimony was offered under either, and no ruling or exception as to either was had or taken, and consequently the record discloses nothing for us to act upon.
The only other questions left for our consideration, are those involved in the demurrers of the plaintiff to the separate matters of defense stated in the first and second subdivisions of the answer. As to the first, I am satisfied that it is well taken, whether the facts set forth in the answer were relied upon as a bar to the further prosecution of this action, or were introduced merely for the purpose of asMng for a stay of the proceedings. It is conceded by the appellant’s counsel that they are no bar. The general rule of law is, that the pendency of a former suit for the same cause of action, and between the same parties, may he pleaded in abatement of a suit subsequently commenced; but the converse of the proposition, it is said, was never true. The first suit cannot be abated by a plea that another for the same cause was afterwards commenced. Renner vs. Marshall, 1 Wheat., 215; Nicholl vs. Mason, 21 Wend., 339; Haight vs. Holley, 3 id., 258. But the rule that a subsequent action maybe thus abated, it seems, is confined to those cases where the former action is pending in the courts of the same state or government, and does not apply where such former action was commenced and is pending before the courts of a foreign or different jurisdiction. Bowne et al. vs. Joy, 9 Johns., 221; Walsh vs. Durkin, 12 id., 99; Wadleigh vs. Veazie, 3 Sumner, 165. The reasons, as given in the first named case, are, that the defendant would not be obliged to pay the money twice, since payment, at least, if not a recovery in the one suit, might be pleaded puis darrein continuance to the other suit; and if the two suits should even proceed pari passu to judgment and execution, a satisfaction of either judgment might be shown, upon audita querela or otherwise, in discharge of the other. In Wadleigh vs. Veazie, where the pendency of a prior action in a state court was pleaded in abatement of a subsequent action in the circuit court of the United States, it was said that congress having under the constitution con*92ferred upon the circuit court jurisdiction over the case, and that jurisdiction having been sought, the court could not escape from'the performance of its duty because another action had been instituted in the courts of the state. So far as it concerns the purposes of such a plea, the courts of the different states and of the United States are, as to each other, regarded as foreign tribunals. Here, the action in the district court was commenced after the present one was instituted, and I know of no principle upon which the proceedings in this can be abated or arrested on account of the commencement of that.
There is another difficulty in the way of regarding it good as matter of abatement, even if the cause of action be admitted to be the same in both cases. The parties are different. They must in general be the same parties plaintiff and defendant in both actions. And it is not sufficient that they be the same persons, but they must be the same as plaintiffs and defendants; and if their position in this respect be reversed, the plea will be bad. Wadleigh vs. Veazie, supra.
Hut conceding that the action in the district court (which is a creditor’s suit, to which the plaintiff and defendant in this action are parties defendant, and in which the note'and mortgage here sued upon are charged to be the property of George 0. Wood, the judgment debtor therein) may, as to the plaintiff, be considered as a process of garnishment or foreign attachment, still I do not think, as is insisted by the appellant’s counsel, that its pendency furnishes a good ground of application to the discretion of the court for a stay of proceedings in this action. The general rule which prevails upon this subject, might, perhaps, have enabled the appellant to apply to the court for a stay of proceedings in this action, until that one was determined, if that action had'been commenced in the same or some other court of this state. In many of the states it is held, that an action may be commenced and sustained against a garnishee during the pen-dency of an action previously commenced against him by his creditor for the same debt, provided the creditor’s action is in such a situation that he can, if charged as garnishee, avail himself of the judgment as a bar to a recovery by the credi*93tor. If, before lie is summoned as garnishee, issue has been joined in the creditor’s action, or the cause has been by a rule of court, under an agreement that judgment should be entered according to the report of the referees, or it is otherwise so situated that he cannot plead puis darrein continuance, then the garnishment is void. The reason assigned is, that if he could be thus made liable, he would have two judgments against him for the same debt at the same time, and might be compelled to pay twice. But where he can avail himself, by plea to the action of his creditor, of a judgment against him for the debt in respect of which he is garnished, then the service of the process of garnishment is a good ground for delay in the original creditor’s action, until the garnishee suit is determined; and such delay will, under proper circumstances, be allowed by the court before which such original action is pending. This is the doctrine of the courts of Massachusetts, Vermont, New Hampshire, and, perhaps, some other states. Thorndike vs. De Wolf, 6 Pick, 120; Trombly vs. Clark, 13 Vt., 118; Wadsworth vs. Clark, 14 id., 139; and Foster vs. Dudley, 10 Foster, 463. See also Spicer vs. Spicer, 23 Vt., 678, where proceedings on the judgment in an action by the creditor were stayed until he should procure the debtor’s discharge from a judgment which had been obtained against him as trustee in an action commenced after that of the creditor. In other states it is decided, that the pendency of an action by the creditor is not, at any stage, an answer to a proceeding against the debtor as garnishee. Smith vs. Barker, 10 Maine, 458; McCarty vs. Emlen, 2 Dallas, 277; and Sweeny vs. Allen, 1 Penn. St., 380. In Wadleigh vs. Pillsbury, 14 N. H., 373, it was determined that the pend-ency of an action against the debtor as garnishee did not preclude the creditor from commencing an action in his own name for the same debt. But all these were cases where the actions were commenced and pending in courts of the same jurisdiction. Where they are instituted and pending in courts of different jurisdictions or sovereignties, no such practice prevails, and no rule of comity is allowed to influence the proceedings of the court whose j urisdiction first attaches. The doctrine of the law upon this subject is discussed by the Su*94preme Court of the United States, in the case of Wallace vs. McConnell, 13 Peters, 136. In that case, McConnell sued Wallace in the district court of the United States for the district of Alabama. After the action was brought, Wallace was summoned as a garnishee of McConnell, in a county court of Alabama, and judgment was there rendered against him. He then plead the judgment in bar of the action pending in the district court, and the court, on demurrer, held the plea bad. The Supreme Court, on this point, say: “The plea shows that the proceedings on the attachment were instituted after the commencement of this suit. The jurisdiction of the district court of the United States, and the right of the plaintiff to prosecute his suit in that court, haying attached, that right could not be arrested or taken away by any proceedings in another court.” They held that the attachment proceeding, to have been of any ayail as a defense to the action in the district court, must have been commenced first, and observed that if that doctrine was well founded, the priority of suit would determine the right; that the rule must be reciprocal; and when the suit in one court is commenced prior to the proceedings in attachment in another court, such proceedings cannot arrest the suit, and the maxim, qui prior est tempore, potior est jure, must govern the case. It may be said that the court was then speaking of the effect of such subsequent action as a bar. But I can see no good ground for distinguishing between their operation in that respect and when they are relied upon for the purpose of securing a stay of the proceedings in the first action. It would be irrational and absurd to say, that the court which had first acquired jurisdiction should arrest its proceedings, because the court of another government, having concurrent jurisdiction over the same subject matter and parties, had subsequently attempted to take jurisdiction of the case; and particularly would this be so when the court which had first obtained jurisdiction, is clothed with ample power, and would, if asked, give to the plaintiffs in the second action the relief to which they might be entitled.
The demurrer to the second separate defense set up in the answer should have been overruled, and for that reason the *95judgment of the circuit court must be reversed. No objection is taken to this part of the answer, either in form or stance, so far as it concerns the allegations of the making of the usurious and corrupt agreement, and the payment of the excessive interest in pursuance thereof. In this respect it is admitted to be sufficient. It was demurred to, and the demurrer sustained, because it contains no averment that the defendant had tendered to the plaintiff the principal sum loaned. In the case of Platt vs. Robinson, decided at the June term, 1859, we held that the act of 1856 did not make the tender a condition precedent to the borrower’s right to plead, or to bring his action and establish the usury, but that it was only a condition precedent to his having the benefit of his plea when established before the court, and consequently that no averment of it in his complaint or answer was necessary. But the act of 1856 is now repealed, and this case comes more particularly within the doctrines of this court in the case of Root vs. Pinney, decided at the last term. [11 Wis., 84.] In this latter case it was held that the provisions of the law of 1856, regulating the tender, were remedial merely; that they did not reach or affect the contract itself; and that as they yvere repealed by chapter 160 of the General Laws of 1859, a tender of the principal sum loaned can, under no circumstances, be required. That decision makes the point under consideration doubly conclusive against the demurrer/
There is another question raised upon this portion of the answer, which was argued at the bar, and which we are called upon to determine. By the law as it stood when the note and mortgage upon which this suit is brought, were executed, the taking or agreeing to take illegal interest did not render the contract void. It was good to secure the repayment of the principal sum loaned, but no interest whatever could be recovered upon it. Chapter 55, Laws of 1856. The answer alleges the payment by the defendant to the plaintiff, of the sum of $60, as interest upon the sum of money mentioned in and secured by the note and mortgage, over and above the highest rate fixed by law; and in addition to setting up such usurious agreement and the payment *96 of the extra interest in pursuance thereof, as a general de-_ fense to the action, or for the purpose of preventing a recovery of anything more than the sum of money actually loaned, the defendant insists that the $60 shall he allowed to him and deducted from the amount of the principal sum loaned, by way of set-off or counter-claim, and that the plaintiff is only entitled to a judgment for the balance which shall remain after such deduction. After a full examination of the authorities on the subject, we are of the opinion that the position of the defendant’s counsel is correct, and that if final judgment should be rendered upon the demurrer, or if upon a trial of the merits, it should be found that the allegations of the answer are true in this respect, the deduction should be made, and that the plaintiff’s measure of damages would be the residue of the principal sum loaned, after, the money thus paid has been taken out. A remarkable unanimity of opinion upon this question seems to have prevailed among the courts of Great Britain and those of the several states of the Union where laws against usury, properly so' called, have existed. It has been universally held, where statutes forbid the taking of excessive interest, and punish a violation of their provisions by the infliction of fines, penalties or forfeitures upon the person who takes it, that the person who pays the same may, independently of the remedies afforded by the statutes, maintain an action for money had and received, as at the common law, 'to recover back the money so paid. In such cases, both parties are not understood to be in pari delicto, so as to preclude a recovery by either. Upon this subject, Mr. Oomyn, in his Law of Usury, page 211, says: “And with regard to parties becoming participes criminis, the following distinction is laid down, viz.: between the prohibition of statutes made to protect the weak or necessitous from being overreached or oppressed, and the prohibitions of statutes enacted upon general reasons of policy and public expediency; in the latter case, all parties are equally criminal; in the former, the oppressor is alone within the pale of the law.” The penalties of the law are all aimed at the lender and none at the borrower; and it appears to be clearly within the intent and meaning of the *97legislature, if not their 'words, that he shall not be permitted to retain or profit by money or property thus unlawfully acquired. The provision of the law of this- state, (sec. 3, chap. 172, Laws of 1861), by which every person paying a greater sum for the loan or forbearance of money than that allowed by law, might, if his action was brought within one year after such payment, recover back treble the sum so paid, confirms this view. It shows that the legislature did not intend that the receiver should retain the money thus obtained, and that they did not consider both parties equally at fault. Otherwise they would not have permitted the borrower to recover back three times the amount and thus speculate out of the attempted extortions of the lender. But if the borrower chooses, by not bringing his action within one year, to waive his right to a treble recovery, he may do so and still retain the right to maintain an action for money had and received, to recover back the excess actually paid, at any time within the period prescribed by the statute of limitations. For the remedy given by the statute is cumulative and not exclusive, as has frequently been decided in other states where similar statutory remedies have been given. Ward vs. Sharp, 15 Vermont, 115; Bank vs. Ensminger, 7 Blackf., 107. If the borrower may thus maintain his action for money had and received against the lender, it follows, as a matter of course, that he may, when sued by the lender to recover the principal sum loaned, or such other sum as, according to law, he may be entitled to receive, set off the amount of excessive interest so paid against the claim of the lender, and have the same deducted therefrom. The party who paid money, as usury, eo nomine, hád therefore, under the statutes as they existed from 1856 to 1859, three courses open to him, either of which he might pursue. He might sue within one year for treble the amount, or afterward for the excess actually paid, or he might await the commencement of an action by the lender to recover the principal sum loaned, and have the excess deducted from it. The doctrines of this opinion upon this subject will, in addition to the authorities above cited, be found to be sustained by the following referred to by the counsel for the appellant: Stevens vs. Lincoln, *987 Met., 525; Tuthill vs. Davis, 20 Johns., 285; Willie vs. Green, 2 N. H., 333; Bond vs. Jones, 8 S. & M., 368; Grow vs. Albee, 19 Vt., 540; Wheaton vs. Hibbard, 20 Johns., 290; Smith vs. Bromley, Doug., 695, n.; and Dey vs. Dunham, 2 Johns. Ch. R., 191.
Our attention has been called to several cases decided by the supreme court of the state of Ohio, (11 Ohio, 417, 498; 12 id., 153, 544; 13 id., 115; and 17 id., 605), in which it has been held that usurious interest voluntarily paid, in that state, can neither be recovered back nor allowed as a set-off against the principal and legal interest actually due according to the terms of the agreement. The reason assigned was that which generally operates to exclude parties from any benefit or redress where the contract .between them is prohibited by law, viz.: that both were in pari delicto, and the law'would leave them where it found them. The obvious answer to these cases as authorities with us is, that it appears from them that they have in Ohio no law forbidding usury and punishing the party who takes it by penalties, forfeitures or an avoidance of his contract. The policy of that state differs from ours. It has never been fixed there against the usurer, as it has here, by legislative enactment. The only statute which they have upon the subject, provides that money due shall draw interest at six per cent, and no more, and that no greater rate of interest shall be recovered. 12 Ohio, 156; 13 id., 114. Hence, all contracts are good for the principal and legal interest The legislature not having discriminated between borrower and lender, the courts could not; and the recovery of the excess only being prohibited, the courts very properly treated both parties as equally iú the wrong.
The judgment of the circuit court is reversed, and a new trial awarded. ,