Gould v. Armstrong

2 Hall 266 | The Superior Court of New York City | 1829

Per Curiam.

The motion for a non-suit, in this case, was properly overruled at the trial. It was made before the consideration, for which the notes or memoranda were given, was proved, and their illegality from that source, if they were in fact illegal, could not be known until it was proved by the defendant.

But it is contended, that the .plaintiffs are not entitled to recover at all, since the facts are disclosed,—because it is now shown, that the instes were given for an illegal consideration; or that there should be a new trial, at all events, since the defendant offered to prove the facts in relation to the consideration, but was refused permission to do so, by the presiding Judge.

The plaintiffs undoubtedly had a cause of action upon the notes which they held ; not in their own names, perhaps,—but, as the bearers or holders of the notes, they could sustain an action in some form or other, to recover their amount.

From the action brought by the plaintiffs, in the Marine Court, the defendant was protected by the agreement. "'"A promise to forbear from prosecuting a suit which could not be maintained, would, of course, be without consideration, and so not bindings But there is nothing to show that the suit in the Marine Court could not have been maintained. The plaintiffs, for all that appears, might have proved an express promise to themselves, which might have sustained their action to the fullest extent. At all events, the contrary is not proved; the defendant has not shown that the action in the Marine Court could not have been maintained, and, of course, there was a sufficient consideration to support his promise of payment, founded upon the forbearance to prosecute the suit in the Marine Court.

As to the illegality of the consideration, founded upon the alleged violation of the acts of congress, there is nothing shown which can connect the plaintiffs with those transactions. They are, apparently, innocent and bona fide holders of the notes, for a valuable consideration, and without notice. If this be so, the illegality of the original transaction, cannot affect the notes in their hands. As the acts of congress do not make the notes void, no defence, of this kind, can protect the defendant against the claims of an innocent and bona fide holder. If the defendant had proved that the plaintiffs were aware of the consideration upon which the notes were given, and had been warned not to trust to them, then defence, such as it is, might properly have been interposed. But without expressing any opinion upon the question, as to the legality or illegality of the notes, we are of opinion, that the evidence offered by the defendant, at the trial, was inadmissible, and that there must be judgment for the plaintiffs upon the case.

Judgment for the plaintiffs.

[F. B. Cutting, Atty. for the deft.]