Bacon v. Norton , 5 Day 128 ( 1811 )

ixcoisou,, J.

(After stating the case.) The question now is, whether a new mat ought to be granted i My opinion is, that there ought to bo no new tria!. Without taking into consideration, bow the case would stand, if the note had not been executed upon an usurious consideration, yd, as it was so executed, I am very clear, that the action is misconceived. It is a point now perfectly settled, that a note, the consideration of which is usurious, may not only be avoided by the promissor, while in the bands of the promissee, but also, (if negotiable,) in the hands of any indorsee. This is on the ground, that it being an instrument originally void, and not binding on the promissor, it must always, so far aa respects him, remain so. It will always be competent for him to say, when called upon to fulfil his agreement, I am not obliged to fulfil it ; nor can the promisee or indorsee, by any form of action, recover against him, for availing himself of a defence, when sued on the note, which the law has put into his hands.

The principle is, and must be, precisely the same, if the note be not negotiable. The assignee, in the ¡alter case, can have no better rigid than the indorsee in the former case. If be sues the promissor, for his own benefit, in the name of the. promissee, lie cannot recover. If lie turns round, and sues, the promissor for availing himself of the usury contained in the note, he must also fail.

if tills be not a correct principle, the statute against usury/, is but a dead letter. Strange, then, would it be, if the proai-'-issor, ia the one case, might tell the court, with success, that the note was usurious and void : and yet, if he avoided ⅜; by means of a release, lie would be liable. This cannot life / *o. If She uola be void, and payment of it cannot be enforced ta’ ⅛bonrt of justice, a discharge of it, can be no legal damlge, .either to the promissee or assignee. I therefore, would not advise a new trial.

The other judges severally concurred in this opinion.

New trial not.to be granted.