3 Ala. 158 | Ala. | 1841
If the statute in relation to usurious interest, had remained unchanged, the cases cited would be conclusive to show that the original note was void, even in the hands of a bona fide holder; but such is not now the case, for the act of 1834, Aik. Dig. 655, provides that the note shall be void only as to the interest. This note was not, therefore, void in its inception, but it presents the case of a note made without any consideration moving from the payee to the makers; it was made for the purpose of being sold to the present holder of the substituted note, and if he had acquired it, with a knowledge of the intention, would have only been void for the excess above, the sum paid by him for it. It is probable that in this condition of things, the maker would have peen permitted to show, in defence, that the note had no other consideration to support it, than what was paid by Nall, and they would not be tolerated to conceal from him the fact that the note was without consideration, and afterwards* insist on it as a defence.
He had a right to purchase the note, and after purchase, it could be avoided in his hands for any want or failure of consideration, unless the makers had concealed the fact, on his application to them for information. He afterwards applied to them for payment, as we must presume, and they gave a new note, due more than a year afterwards: Even then they make no claim of a defence. We think the new promise was a waiver of any defence, as to the original consideration, and it would be a fraud on the holder, to permit the defendants now to inquire into the defective consideration of'the first note.
Let the judgment be affirmed.