Demeritt v. Miles

22 N.H. 523 | Superior Court of New Hampshire | 1851

Gilchrist, C. J.

In this case the verdict for the defendant has established the fact that the note in suit was given for the purpose of delaying the creditors of the defendant. Of this fact both the defendant and the plaintiff’s intestate were conusant. If the intestate could not have alleged that the defendant was estopped, the administrator cannot; as he is privy in law to the intestate.

Could the intestate have recovered the note ? He could not have said that he was misled, or that he was induced to alter his position in any way, by the fact that the note was without consideration. He would have sought to recover that as a debt which was not a debt, and for which he had given the defendant no value. He would have sought to make that substance which, as to him, was merely form. Although both parties were in the wrong when they entered into this arrangement, why should the plaintiff reap the benefit of it, at the expense of the defendant ? The defence does the plaintiff no wrong. It deprives him of no debt, for none was owed him. The admission of value received contained in the note, was not made independently and because it was true, but was merely conventional, entered into between the parties from other causes than a conviction of its truth, and was only a convenient assumption for the particular purpose on hand. Greenl. Ev. 237. There is nothing unconscientious or against honest dealing in setting up this defence against the plaintiff. The case of Davis v. Sanders, 11 N. H. Rep. 250, is an authority for this course of reasoning. There is no breach of good faith in setting up the illegality. Tufts v. Hayes, 5 N. H. Rep. 432.

How does the admission of this defence differ in principle from the admission of the defence of illegality to a note made and delivered on Sunday? There the defendant alleges his own wrong as a defence ; but the maxim applies, in pari delicto, &c.

The general rule is, that, as between the parties, the consideration of the promise may be inquired into. In Waite v. Harper, 2 Johns. 386, in assumpsit, the defendant proved that the promise was made in consideration that the plaintiff would not oppose the defendant’s discharge under the insolvent act. And it was held, that the consideration for the promise was illegal, and was founded in fraud, being made for the purpose of stifling a due scrutiny into the claim of the defendant to a discharge under the insolvent act; and the judgment for the plaintiff was reversed. In Case v. Gerrish, 15 Pick. 49, the defendant gave the plaintiff his note to induce him to become a party to his assignment, and the parties agreed that the plaintiff should have this note for the balance, which the property assigned should be insufficient to pay. It was held that evidence of such facts was admissible and showed the note to be fraudulent and void. See also, to the same effect, Cockshott v. Bennet, 2 Term. Rep. 163 ; Wiggin v. Bush, 12 Johns. 346.

The oath made upon the mortgage by both parties can have no effect in depriving the defendant of his defence. The parties merely added perjury to fraud.

The evidence that fifteen months before, Demeritt was pressed for money, and was not in a situation to lend it, was proper. It had some tendency to show that, at the date of the note, he had not such a sum to lend.

The defendant says, that though the property was mortgaged to Demeritt, he (the defendant) had disposed of some of it, and that Demeritt had not objected. To this the plaintiff answers, that the defendant inherited a valuable farm from his father in June, 1845, subsequent to the date of the note, and therefore he was not anxious. But this inheritance would not explain his indifference unless he knew of it, which does not appear, and therefore the ruling was right.

Judgment on the verdict.