Mason v. Anthony , 35 How. Pr. 477 ( 1867 )

By the Court.

Bocees, J.

It has been settled in the su-

preme court, in numerous cases, that an estoppel in pais may be urged against the defense of usury, the same as in any other case where the doctrine of estoppel in pais is applicable. The decisions in that court are numerous and uniform. Ferguson v. Hamilton, 35 Barb. 437; Chamberlin v. Townsend, 36 Id. 611; Merchants’ Bank of Brooklyn v. Townsend, 17 How. Pr. 569; Truscott v. Davis, 4 Barb. 495; Dow v. Schutt, 3 Den. 631. The rule was also well settled in the late court of chancery. Holmes v. Williams, 10 Paige, 336; Mitchell v. Oakley, 7 Id. 68. Also in the superior court. Clark v. Sisson, 4 Duer, 408. It is the same in Connecticut. Roe v. Jerome, 18 Conn. 138; Middleton Bank v. Jerome, Id. 443. And perhaps in some other States. The estoppel, too, has often been held to be available against an indorser as well as maker.

The distinction marked by the referee, and on which he based his decision, has never been recognized in any reported case, nor is it sound in theory. There can be no reason why an indorser should not be estopped by his representation that the note is valid business paper, as well as the maker. The consequences to the purchaser are the same in both cases.

There is a question, however, not considered in any of the cases, which lies at the foundation of the rule, apparently so Well established in the supreme court. It is this: whether the doctrine of estoppel in pais should have applicatiou to the defense of usury. This question is worthy of consideration, and is still open in this court. Judge Dentó seems to have had it in mind when discussing the subject in Bank of Geneva v. Patchin Bank, 13 N. Y. 316. In speaking of the rule, he says; “ This is carrying the principle of estoppel to the length of protecting a transaction prohibited by a positive law, founded upon considerations of public policy.” He adds: " It is not necessary to affirm that doctrine in this case; ” hence he refrained from entering upon its examination. The point was commented on in Ferguson v. Hamilton, 35 Barb. 427, and suggestions were made, here unnecessary to repeat.

On careful reflection and discussion, we are of the opinion that an estoppel in pais may be urged against the defense of usury. The same considerations of morality and public policy exist in that as in other cases where the doctrine of estoppel obtains. ¡Nor should we, on other than grounds of absolute necessity, disturb a rale which has so long controlled the business affairs of the country, and been relied on as settled law.

The order appealed from must be affirmed; and the plaintiff is entitled to judgment absolute, pursuant to the stipulation given on the appeal.

All the judges concurred, except Fullebton, J., not voting.

Judgment absolute, with costs.