Clark v. Ricker

14 N.H. 44

• Court: Superior Court of New Hampshire
• Decided: July 15, 1843
• Status: Published

Opinion

Parker, O. J.

The agreement not to prosecute for the alleged offence, formed a part of the consideration for which the note was given. It was not merely a settlement of the damages.

The contract being entire, and a part of the consideration illegal, the whole note may be avoided in the hands of the payee, or of a holder with notice. 5 N. H. Rep. 533; 6 Ditto 225; 9 Ditto 197. But this is not a defence which can avail against an indorsee who took it before it was due, and holds it bona fide, without any notice of the illegality in the consideration. 1 N. H. Rep. 254; Story on Bills 210, $ 189.

The attempt to charge the plaintiff with notice, by evidence that a notice was inserted in certain newspapers taken by other individuals, residing near him in the village, was wholly incompetent for that purpose. It would be preposterous to charge a party with notice of every thing which is inserted in a newspaper taken by himself.

The evidence that the matter was a subject of conversation in the neighborhood, it not appearing to have been in the presence of the plaintiff, was also incompetent. The jury are not to guess or presume that he must have heard it spoken of, for that reason alone.

If there was enough besides in the evidence which might have been submitted to the jury, on which to find that the plaintiff had in fact knowledge of the circumstances, or sufficient notice to put him upon inquiry, or that he was in fact only a nominal plaintiff, it does not appear that from such evidence alone they would have so found, and there must, therefore, be a New trial.