Gilmour v. Thompson , 6 Daly 95 ( 1875 )

Robinson, J. [after stating the facts of the case as above].

The reasons assigned for the affirmance by the general term of the Marine Court, in the able opinion of Judge McAdam, are entirely satisfactory in demonstrating that the consideration of the note being founded on exaction by defendants, in fraud of other creditors, was void, was not enforceable as between these parties. The question has been fully investigated in this court in the learned opinion of the Chief Justice Daly, in Pinneo v. Higgins (12 Abb. Pr. 331), and the opinion of Judge McAdam was in harmony therewith.

The further question, whether a party to a negotiable promissory note, void as between him and the payee, by holder, but which has been transferred by the other having such void title, to another who has become a tona, fide holder for value before maturity, can, on payment of the note to such tona fide holder, recover from the party thus transferring the illegal security, and causing the enforcement of it as an obligation which the party so transferring it could not have exacted,, seems so clear that it is not raised on this appeal. The liability of the defendants for the amount they have thus through color of the law illegally caused to be exacted from the plaintiff, seems clear. Judgment should be affirmed.

Charles P. Daly, Ch. J., and Larremobe, J., concurred.

Judgment affirmed.