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of persons so gaming, money knowingly lent for such gaming or betting, money lent at the time and place of such play to any person either then gaming or betting, or who shall, during the play, play or bet, (63) money lent on an usurious contract, the (64) ransom, or money knowingly (65) lent to

to his own order and by him endorsed. Duckworth drew and endorsed the bill without any consideration at the request of an agent of O'Reilly, and O'Reilly obtained Benson's acceptance on account of a sum won at cards by O'Reilly of Benson. Duckworth the drawer was a stranger to Benson. The plaintiffs were bonâ fide endorsees for a valuable consideration without notice. The court held that the action could not be maintained, the bill being void within the statute of 9 Anne, c. 14, § 1. Richards C. B. said that the bill was "drawn for the purpose and on account of this very gambling debt;" but expressed an opinion that an occeptance was within the meaning of the statute. Graham B. said, "I allow that the statute only extends to bills drawn; but a bill is only in an inchoate state before acceptance. It has no binding force as a bill of exchange until acceptance. It is not drawn for any purpose until accepted; and when once accepted, the act of acceptance has relation to the drawing." Henderson v. Benson, 8 Price, 281.]

(63) By 12 Ann. St. 2. c. 16. It is enacted, that no person or persons whatsoever, upon any contract, take directly or indirectly, for loan of any monies, wares, merchandise, or other commodities whatsoever, above the value of £5 for the forbearance of £100 for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time; and that all contracts and assurances whatsoever, made after the time aforesaid, for payment of any principal, or money to be lent or covenanted to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of £5 in the hundred, as aforesaid, shall be utterly void.

Lowe v. Waller, Dougl. 708-736. The defendant was acceptor of a bill, which he gave to Harris and Stratton upon an usurious contract; Harris and Stratton endorsed it to the plaintiff for a valuable consideration, and the plaintiff had no notice of the usury; upon a case reserved, the question was, whether the usury between Harris and Stratton and the defendant was a defence against an endorsee who took the bill bonâ fide, and paid a valuable consideration for it; and after time taken to consider, the court held it was, and though Lord Mansfield had a wish the law should turn out in favor of the plaintiff, the court found the words of the act too strong, and could not get over the case of Bowyer v. Bampton, Str. 1155.

[In an action by the endorsee of a note against the endorser, it is a bar that the note was given by the maker to the endorsee on a usurious consideration. Levy v. Gadsby, 3 Cranch, 180.]

(64) By 45 Geo. 3. c. 72. (which repeals the former act 43 Geo. 3. c. 160. relating to the same subject) sect. 16. it is enacted, "That it shall not be lawful for any of his Majesty's subjects to ransom, or to enter into any contract or agreement for ransoming any ship or vessel belonging to any of his Majesty's subjects, or any merchandise or goods on board the same, which shall be captured by the subjects of any state at war with his Majesty, or by any persons committing hostilities against his Majesty's subjects, unless in the case of extreme necessity to be allowed by the court of admiralty."

enable the owner to obtain the ransom, of the ship or vessel of any British subject, or any merchandise or goods on board the same, as before mentioned.

Where usury is the defence, letters between the parties at the time the bill or note is given, to fix the usurer's terms, (66) are admissible in evidence against a subsequent holder, if the usury is as against him a valid defence. (a)

And by sect. 17. "All contracts and agreements which shall be entered into, and all bills, notes, and other securities which shall be given by any person or persons for ransom of any ship or vessel, or of any merchandise or goods on board the same contrary to this act, shall be absolutely null and void in law, and of no effect whatever."

(65) Webb v. Brooke, 3 Taunt. 6. The plaintiff and defendant (British subjects) were made prisoners by the French at Oporto, where the defendant's ship was at the same time taken; they jointly petitioned for the release of themselves, and for the ransom of the defendant's ship, and to enable the defendant to pay for the ransom, the plaintiff lent him 3000 dollars, and for this sum the defendant drew a bill in his own favor, which he endorsed to the plaintiff. Their liberation and the ransom were accordingly effected, and they returned (as had been agreed upon) in the ship to England. The drawee refused to accept the bill, and this action was brought against the defendant as endorser. The defence was the illegality of the purpose for which the money was lent according to 45 Geo. 3. c. 72. A verdict was found for the plaintiff, and the point of law reserved. And after a rule nisi to enter a nonsuit, and cause shewn, Mansfield C. J. said, there is a manifest distinction bet veen the cases of Faikney v. Reynous, and Petrie v. Hannay, and the other cases, in which a man having a debt of honor borrows money to pay it, and those cases where the plaintiff previously advances the money for effectuating an illegal transaction, or causing it to be done. Here the plaintiff and the defendant are equally ransomers; equally solicitous to procure the ransom, for they were to return home by this ship. The ransom is as much the deed of the plaintiff as of the defendRule absolute.

ant.

(66) Kent v. Lowen, 1 Campb. N. P. C. 177. 180. d. This was an action against the maker of a note, endorsed by the payees to Watson, and by him to the plaintiff. The defence was usury in the original consideration for the note; to prove which the defendant tendered letters from the payees to the defendant setting forth the consideration. Lord Ellenborough held that it was first necessary to shew, either by the post mark, or otherwise, that the letters were contemporaneous with the making of the note, after which they would be evidence of an act done by the payees through whom the plaintiff claimed. From the post mark it appeared that they had been written just before the date of the note, and they were read in evidence. The defendant had a verdict; and on a motion for a new trial, the court held that the letters had been properly received.

[(a) The oath of the maker of a note to prove that it was given on a usurious consideration, which is permitted in Massachusetts by statute, 1783, c. 55. § 2, is only admissible where the original party to the usurious consideration is plaintiff; and it is not admissible even where the plain

But now 58 G. 3. c. 93. removes the objection of usury from an endorsee for valuable consideration, if he was ignorant of the usury at the time he took the bill or note and gave the consideration. (67) (b)

If the consideration upon which a bill or note was made is not illegal, an illegallity in the consideration upon which it is afterwards transferred will be no (68), defence, if the plaintiff took it bonâ fide, and upon a good consideration, and is not bound in making out his title to state or prove the signature of the person making such transfer.

Where he is bound to state or prove such signatures, the authorities are contradictory upon the question whether the illegality is a defence.

If the bill or note were originally given upon an unobjectionable consideration, but endorsed over by the payee upon an illegal consideration, Lord Kenyon thought a subsequent endorsee, if he took the bill bonâ fide, and upon a valuable consideration, was entitled to keep it in opposition to such payee; (69)

tiff is a mere trustee for the original creditor, the party to the usurious consideration. Binney v. Merchant, 6 Mass. R. 190.]

(67) By 58 G. 3. c. 93. no bill or note that shall be made after 10th June, 1818, shall, though it may have been given for an usurious consideration, or upon an usurious contract, be void in the hands of an endorsee for valuable consideration, unless such endorsee had, at the time of discounting or paying such consideration for the same, actual notice that such bill or note had been originally given for an usurious consideration, or upon an usurious contract.

[(b) In New Hampshire the maker of a note including in it usurious interest reserved upon the remaining part of the note, cannot set this up as a defence in an action by a bona fide endorsee, the statute of that State of 12 February, 1791, not declaring the contract void, but only prohibiting the taking of more than six per cent. interest. The court said that if the action had been brought by the original payee, the illegal interest would have been deducted. Young v. Bradley, 2 N. Hamp.

R. 410.

In Massachusetts, by a late statute, (passed March 4, 1826,) no contract or assurance is rendered void on account of usurious interest being taken or reserved upon it, but it is valid for the recovery of the principal sum without interest.]

(68) Daniel v. Cartony, Espinasse, 274.

(69) Parr v. Eliason, 1 East's Rep. 92. A bill was drawn in favor of the plaintiff, he endorsed it to Persent and Bodeker upon an usurious consideration, and they endorsed it over; it was afterwards endorsed back to the assignees of Persent and Bodeker, who had become bank

And to enforce payment in case of a bill, against the acceptor. (70)

In Lord Ellenborough's time, the court of king's bench thought he could not enforce such payment. (71) (a)

rupts, for a debt due to their estate; upon which the plaintiff brought trover to recover back the bill. Lord Kenyon directed a nonsuit, and after a rule nisi for a new trial, the court held, that as the bill was originally good, and as the endorsement by Persent and Bodeker was unimpeached, their endorsee had a good right to the bill, and that right was transferred to the defendants. Rule discharged.

(70) Daniel v. Cartony, Espinasse, 274. Scott drew a bill on the defendant payable to his own order, and discounted it with Greensill, who took 187. per cent. discount; it was afterwards endorsed to the plaintiff, and the defendant could not impeach that transaction; and per Lord Kenyon, This is no defence; had the note been originally given on an usurious transaction, or for an usurious consideration, it would have been void in the hands of even a bonâ fide holder; but usury in an intermediate transaction respecting it, can never make it void in the hands of a bonâ fide endorsee, where there was no usury in the original transaction.

(71) Lowes v. Massaredo, 1 Stark. 385. In an action by endorsees against acceptor on a bill payable to Lowes or order, it appeared that Lowes endorsed it to Bloxham upon usurious terms, that Bloxham endorsed it to Ambrose, and that Ambrose endorsed it to the plaintiffs upon questionable terms: Lord Ellenborough thought plaintiffs precluded from recovery by the usury between Bloxham and Lowes, independent of the usury between them and Ambrose, but upon being strongly pressed by Parr v. Eliason, he suffered plaintiffs to take a verdict, subject to a motion for entering a nonsuit; a rule nisi was accordingly granted, and on cause shewn, the court thought the usury between Bloxham and Lowes a bar to the plaintiff's claim, because they could not bring themselves in connexion with the defendant but through the medium of Lowes's endorsement, which was tainted with usury: they also thought the terms upon which Ambrose endorsed to the plaintiff's usurious, and the rule for a nonsuit was made absolute.

[But see Munn v. Commission Company, p. 368. note (a)].

[(a) If a bill or note be made for the purpose of raising money upon it, and it is discounted at a higher premium than the legal rate of interest, and where none of the parties whose names are on it could, as between themselves, maintain a suit on the bill or note when it becomes due, provided it had not been discounted, then such discounting the bill is usurious, and the bill void. Munn v. Commission Company, 15 Johns. R. 44. See also Powell v. Waters, 17 Johns. R. 176; and Levy v. Gadsby, ante, p. 364.

Roosevelt endorsed a note made by Mark and Co. for their accommodation, this note Goodrich discounted for Mark and Co. at a usurious rate of interest. In an action by an endorsee to whom Goodrich had passed it against Roosevelt, the court held that the note was usurious and void. Radcliff J. "Notwithstanding the note was made payable to Roosevelt, and endorsed by him, it was essentially an original contract between Mark and Co. on the one part, and Goodrich on the other, and as between them, was clearly founded on usury and void." Wilkie v. Roosevelt, 3 Johns. Cas. 66.

It is no objection in an action against an endorser that the bill or note was drawn upon a gaming, or usurious, or

In an action against M'Cullum and Merriam, as makers of a note payable to Averill or bearer, it was proved that the note was made for the purpose of passing it to Averill for a good consideration, but it had in fact never been passed to him. The defendants at the trial before Woodworth J. offered to prove that Merriam afterwards sold it to Hudson for less than the amount due on the note. The judge rejected the evidence. Platt J. delivered the opinion of the court. "As to Averill this note had no inception. And if, as the defendants offered to prove, the agreement between Hudson and the makers was usurious, and the note was first given to Hudson as security for an usurious loan; then it follows that it was corrupt and illegal in its inception." New trial. Marvin v. M'Cullum, 20 Johns. R. 288.

See Henderson v. Benson, ante, p. 363.

The defendants made their notes payable to Fitch or bearer, to enable him to raise money upon them at a usurious rate of interest, and Fitch sold them to Humphreys at 21 per cent. discount; and it did not appear whether Humphreys knew the manner in which Fitch obtained the notes. In an action on these notes by a person to whom Humphreys passed them against the makers, it was held that they were void. Van Ness J. said, "The case of Munn v. Commission Company is decisively against the plaintiff. We decided that a note made for the purpose of being discounted at an usurious interest, and endorsed for the accommodation of the maker, was void in its original formation." Bennet v. Smith, 15 Johns. R. 355.

Eaton held a note made by Blanchard and Ford, and endorsed by Hubbard, and given by Blanchard and Ford to Eaton for a usurious consideration. When the note fell due Eaton agreed to give Blanchard and Ford further credit, provided he had other security. They offered to give him Hubbard's note endorsed by Sumner. They procured and delivered him such a note, and the other note was cancelled. An action was brought against Hubbard by persons to whom Eaton had transferred this note, without endorsing it himself. A majority of the court, Parker C. J. Thacher and Wilde Js. held that the note was usurious, and therefore that the plaintiffs could not recover. Parker C. J. said, “The proposition made by one party and acceded to by the other, was that this note should be taken as security for a pre-existing usurious debt. For this purpose it was made and delivered to the usurious lender." Jackson and Putnam, Js. dissented. Jackson J. said, "I say the note was made for a lawful and sufficient consideration; because that is the legal presumption in the absense of all evidence to the contrary: we must presume that it was either given for a preceding debt due to Blanchard and Ford; or that they paid the value for it at the time; or that they gave satisfactory security to Hubbard to pay the amount at a future day." Bridge v. Hubbard, 15 Mass. R. 96.

See also Towsend v. Bush, 1 Conn. R. 260.

But where the original consideration for which a bill or note is given is good, and it is afterwards sold at a greater discount than the legal rate, this is no defence in an action against the maker by a purchaser. H. Ruggles drew a bill, in favor of O. Ruggles on Darling, agent of the Commission Company, which was accepted by the drawee. O. Ruggles sold the bill by a broker, deducting more than the legal rate of interest, and endorsed the bill, but there was no evidence of any usu

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