¶1—The defence of usury was properly stricken out. The answer does not set up any usurious agreement intended as such, and the plaintiffs show by affidavit that the error was made by the clerk in calculating the interest, and was not intended as usury. The defendants in no way contradict the statement.
¶2As to the second defence, the agreement to receive the notes was made simultaneously with or before the making of the *359notes, and, not being in writing, was insufficient to vary the legal effect of the notes. The defence set up was therefore frivolous.
¶3The answer as to the want of protest was sufficient, and we think should stand.
¶4The order modified, so as to strike, out all the answer of Lane and Guild, and all of Robert Lane except the first defence, without costs of this appeal.
¶5 Present, Clerke, P. J., Ingraham and Leonard, JJ.