| N.H. | Dec 15, 1865
The signatures of the note and endorsement not having been denied by notice upon the docket accompanied by an affidavit, they were to be considered as admitted by the express terms of the rule.
As to the stamp, it appears that the note was made November 20th, 1863, and by law of June 30, 1864, section 163, any instrument.before that time signed or issued without being duly stamped, may be stamped in the presence of the court wherein it is desired to use it,and thereby be made valid; and under this law the plaintiff was permitted in court, on the trial at April Term, 1865, to affix and cancel the requisite stamp to this note.
The question, then, is, whether this law of June 30, 1864, was then in force and applicable to the note in suit, and this depends upon the construction to be given to the law of March 3, 1865.
By that law, section 158 of the law of June 30, 1864, is amended by striking out all after the enacting clause and re-enacting it substantially with two new provisos. By that section both in the law of June 30, 1864, and in that of March 3, 1865, a person making any instrument without duly stamping the same, is subject to a penalty, in the first law, of $200.00, and, in the other, of $50.00, and such instrument is declared to be invalid and of no effect; but in a new proviso, in the law of March 3, 1865, it is enacted that where a party has not affixed the proper stamp to any instrument- required by the act of June 30, 1864, and is desirous of doing so, he appear before the collector of the district and on payment to him of the price of the proper stamp,
It will be perceived that this law applies only to cases where the stamps required by the law of June 30, 1864, were not affixed, and as the note in question was made in November, 1863, and the stamp required was under a law made prior to’that of June 30, 1864, it is quite clear that the law of March 3, 1865, does not apply here; and such, we understand, is the construction given by the department at Washington.
Therefore, the provisions of section 163 of the law of June 30, 1864, are, in respect to instruments made prior to that act, left in full force, and the note in question was made valid by affixing the proper stamp in the presence of the court.
The law of 1864 authorizing stamps to be affixed in the presence of the court, applied only to instruments made before the passing of that act, and the law of March 3, 1865, so far as regards the provisions under consideration, was designed to provide for instruments made under the act of June 30, 1864.
The remaining question is, whether the note was given upon a good and legal consideration, being for part of the price of certain spirituous liquors Sold by S. Ropes & Co., the original payees, to the defendant, Lane. On the trial the defendant offered evidence tending to prove that the note was given in the settlement of an account for liquors, and contended that this defence was available against the endorsee, unless he proved that he was a bona fide holder of it, and that defendant was not bound to show that he was not; but the court ruled otherwise, and directed a verdict for the plaintiff.
In this, we think, there was error; for it is now well settled in this State and elsewhere, that if the note was obtained by fraud or duress, or upon an illegal consideration, and it comes into the hands of an endorsee, the burden is upon him to show that he is a bona fide endorsee and for value. Clark v. Pease, 41 N. H. 414, where the cases are collected and thoroughly considered.
Where the defect is merely a want of consideration the rule is otherwise, and the endorsement is prima facie evidence of an adequate consideration for it. Horn v. Thompson, 31 N. H. 562.
The reason for this distinction is said to be that in the case of fraud, duress, or illegality of consideration, a presumption arises that the party so obtaining it would transfer it, that the suit might be brought in another’s name.
In relation to some of the liquors, it appeared that defendant ordered them of the original payees who were dealers in those articles in Boston, Massachusetts, to be forwarded by railroad to Exeter, New Hampshire, where the defendant resided; and they were so forwarded, and the defendant paid the freight on them.. If this was to be regarded as a sale in this State it would clearly be illegal unless the sellers were specially authorized under our laws to make such sales, of which thez-e
This, then, is a delivery in Boston and a completion of the sale there. Where goods are ordered of a tradesman to be sent by a carrier, although no particular one be named, the moment they are delivered to the carrier it operates as a delivery to'the purchaser, and the whole property at once vests in him, the carrier, in fact, being considered the agent of the buyer and not of the seller. Dutton v. Solomonson, 3 Bos. & Pul. 584; Story on Con. secs. 804, 806; 1 Parsons on Con. 445; Cooke v. Ludlow, 2 B. & P. New Rep. 118, and note, and Vale v. Bayle, Camp. 294.
As to the other sale of liquor, the bargain was made in Exeter, and it does not appear whether the delivery was there or in Boston; but this is immaterial, not only because the sale would be illegal in both States unless special authority were shown, but because the price of the liquors sold at the several times was brought into the same account, and the note given for a general balance.
One question only remains, and that is, whether the burden was upon the plaintiff to show that the sellers were duly licensed, under the laws of Massachusetts, to make these sales, and we think it is well settled in this State that it was. Bliss v. Brainard, 41 N. H. 256; Doolittle v. Lyman, 44 N. H. 608.
The fact that the action is brought in the name of an endorsee can make no difference; because, not having shown that he was a bona fide holder for value, the defence stands upon the same footing as if the suit were brought by the original payees.
Upon these-views there must be, therefore,
A new trial.