Young v. Berkley

2 N.H. 410

• Court: Superior Court of New Hampshire
• Decided: November 15, 1821
• Status: Published

Opinion

Woqbbory, J.

The question to be decided in this case is, whether a note of hand can in this state be impeached in'the hands of a bona fide endorsee, on the ground that the consideration of the note was illegal interest?

It is well settled, that, when a contract or assurance is declared by statute to be void, it must be considered as void even in the hands of an innocent endorsee, who has given a valuable consideration for it. Chitty of Bill 70.—2 Strange 1156, Boyer vs. Bampton.—Doug. 736, Lowe vs. Waller.—5 Mass. Rep. 286, Bayley vs. Tabor.

But at common law, a note in the hands of an innocent endorsee, is not affected by any illegality in the consideration. 4 Mass. Rep. 370, Ayer vs. Hutchins.—1 N. H. Rep. 254, Perkins vs. Challis.—1 East 92.—8 D. & E. 390, Cuthbert vs. Haley.- Chitty on Bills 67—72.

Our statute of February 12, 1791, declares, “ that no per- “ son or persons, upon any contract, &c. shall take either “ directly or indirectly for the loan of any money, &c. above “ the value of six pounds for the use and forbearance of “one hundred pounds for a year.”(l) This statute has made the taking of any rate of interest above that mentioned in the act illegal; and if this suit were between the original parties to the note, the defendant would be entitled to avail himself of the evidence he offered and to have the illegal interest, if there be any, deducted. But the statute has not declared that the contract or assurance shall be void on this account; and the defendant is not entitled to set up usury as a defence to any part of the note, after it has passed into the hands of an innocent endorsee without notice. We are therefore of opinion, that there be

Judgment on the verdict.