Knapp v. Briggs , 84 Mass. 551 ( 1861 )

Metcalf, J.

The judge ruled rightly that the plaintiff was not entitled to recover. The statute law as to usury applies as well to the indorsee of a note as to the payee. Kendall v. Robertson, 12 Cush. 156. It applies also as well to the note in suit as to the note given for the money lent in December 1858. The renewal of a note tainted with usury does not purge the taint, unless, in the renewed note, a deduction is made of all that was paid usuriously, or unless the sum so received is paid back. Blydenburgh on Usury, 88. 2 Saund. PI. & Ev. (2d ed.) 1189. In this case usury was included in all the notes given by way of renewal.

The fact that Draper, the payee, procured the note, for which the note in suit was given as a renewal, to be discounted for his own benefit, did not relieve this note from the taint which attached to the note which was thus discounted. When he took up that note by paying it to the bank, he held it subject to the same defence as when he indorsed it to the bank. Threefold the amount of all the illegal interest reserved or taken on the several notes given for the original loan is to be deducted; and as that amount exceeds the sum for which this note was given, the Gen. Sts. c. 53, § 4, require that judgment be given for the defendants.

Exceptions overruled.