Dunn v. Moore ( 1875 )

Welch, C. J.

The right to recover of the payee for usurious interest paid to an indorsee is given by the statute (S. & C. 794), and in order to such recovery the plaintiff must bring his case substantially within its provisions. The statute allows the recovery only in cases where the payment has been made to a “ bóna fide indorsee of negotiable paper, purchased before due.” There is no averment that such was the character of the indorsee here. For aught that appears, the note may have been a gift by the payee to the indorsee, or it may have been indorsed merely for collection, and for the very purpose of defeating the defense of usury. We think that the bona fides of the transfer, and the fact that there was an actual purchase of the note for value, are not to be presumed in such cases from the mere fact of indorsement before due and without notice, but must, in order to bring the case within the statute, be averred and proven by the party seeking to recover.

Judgment of the District Court reversed, and that of the Common Pleas affirmed.

White, Rex, Gilmore, and McIlvaine, JJ., concurred.