Carleton v. Whitcher

5 N.H. 196

• Court: Superior Court of New Hampshire
• Decided: May 15, 1830
• Status: Published

Opinion

By the court.

The first question to be settled in this case is, whether the witnesses introduced by the defendant were competent witnesses to prove the facts on which the defence is placed ? They were co-signers of the note, but had been released by the defendant from all liability to contribution. It is settled, that under these circumstances, they cannot be excluded on the ground of 'interest. 3 N. H. Rep. 115, Ames v. Withington.

Nor is there any tiling in the nature of the facts which the witnesses were called to prove, which can exclude them from testifying. They were called to show that the note was an accommodation note, and was passed to Johnson upon an illegal consideration. The rule is, that a party to a negotiable security shall not he permitted to testify facts which render it void, even in the hands of an innocent endorsee. But want of consideration is no de-fence to a note in the hands of such an endorsee for a valuable consideration. 2 N. H. Rep. 212, Bryant v Ritterbush.

Nor can the note he impeached in the hands of such an endorsee, on the ground that it had passed from Knight to Johnson under an illegal contract, 1 East. 91, Parr v. Eliason; Chity on Bills, 72.

We have therefore no hesitation in overruling the objection to the competency of the witnesses.

The next question is, whether the consideration on which the note was transferred from Knight to Johnson was illegal ? The consideration was, in fact, the sale of the office of deputy sheriff — an office of trust which concerns the administration of justice, and which it is clear from adjudged cases cannot be the subject of a sale. 2 N. H. Rep. 517, Meredith v. Ladd; 2 Carr. & Payne, 1, Waldo v. Martin; 4 B. & C. 319, S. C.

The contract between Knight and Johnson was illegal -and void; and this note was a mere accommodation note, made to be passed to Johnson under that contract. It is then clear that Johnson, who is the real plaintiff in this -case, can maintain no action upon the note.

It is said that a part of the consideration was legal, and that this is sufficient to sustain the note. But where the contract is entire, if a part of the consideration be illegal, the whole contract is void.