Forbes v. Marsh

3 N.H. 119

• Court: Superior Court of New Hampshire
• Decided: October 15, 1824
• Status: Published

Opinion

By Ike cauri.

We have decided, that in an action between the endorsee and the maker of a note, if it appear, that the note has been bona fide transferred to the endorsee, without notice of the usury, the maker cannot set up usury as a de-fence. 2 N. H. Rep. 410, Young vs. Berkley. We are aware, that this principle, when it becomes generally known, may be used by usurers to evade the statute. This however may be easily prevented, by throwing upon the endorsee, when a plea of usury is offered, the burthen of shewing, that ihe note has been bona fide transferred, before due, for an adequate consideration. This maybe done by his affidavit. If he will, under oath, state, that the note was bona fide transferred to him, before due, for a full consideration, and not to evade the statute, the plea must be rejected. But otherwise it is to be received. We are not aware, that this course will have any greater tendency to introduce perjury, than the provision in the statute, which authorizes the payee to clear himself of Ihe usury by his own oath.

The demurrer, in this case, is not well taken. But the plaintiff may withdraw the demurrer, and shew, if he can, that the plea ought not to be received,