Swett v. Hooper , 62 Me. 54 ( 1873 )

Peters, J.

The rulings, as to what burden of proof rested upon the respective parties in this suit, are sustained in Field v. Tibbetts, 57 Maine, 358, and Hapgood v. Needham, 59 Maine, 442. The counsel for the defendant questions the correctness of the latter case as not consistent with earlier decisions. It is true that, in many cases, as in Aldrich v. Warren, 16 Maine, 465, and Munro v. Cooper, 5 Pick., 412, it is said in general terms that where it is shown that a note is procured by fraud, or founded on an illegal consideration, the indorsee who sues the note must show that he came by it without knowledge of the fraud or illegality. But the rule, more accurately stated, is that the plaintiff must show that he is the holder for value, in the due course of business, unattended with any circumstances justly calculated to awaken suspicion. This appearing, the presumption arises that the note was obtained without any knowledge of the fraud or illegality, upon the part of the purchaser, until the contrary is shown. That is what the ruling complained of amounted to in this case.

A point is taken that, upon a note not payable with interest, and given upon a- time certain, interest is not recoverable excepting after demand made at the time the note becomes due or after-wards. But this cannot be regarded even as an open question. In England there has been much loss liberality in the allowance of interest than here. But in both countries the rule has been established, adversely to the position taken by the defendant, for many years. In People v. New York, 5 Cowen, 331, the principle was correctly and tersely stated ; “that whenever the debtor knows what he is to pay, and when he is to pay it, he shall be charged with interest if he neglects to pay.”

Exceptions overruledi.

Appleton, O. J., Cutting, Walton, Dickerson, and- Barrows,. JJ., concurred.