20 Johns. 288 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court.
With deference, it seems to me, the Judge was mistaken in excluding the evidence offered by the defendants. The reason for rejecting that evidence, may be collected from the charge to the jury, to wit: That “ the note was not usurious in its inception, but was given for the purpose of being passed to Jlverill, for its full value.”
The mistake, I apprehend, consisted in the misapplication of the terms “ purchase” of the note; and the “ inception” of the note. By its inception, I understand, when it was first given; or when it first became the evidence of an existing contract. It has no legal inception until it is delivered to some person, as evidence of a subsisting debt. Merely writing and signing a note, and retaining it in the hands of the drawer, forms no contract. No person had then a right of action on it, any more than if it had been blank paper. This note was drawn payable to Averill or bearer ; but it never was delivered to him, nor had he ever any interest in it. As to him, therefore, it had no inception. His name was used like that, of a fictitious payee in bank notes : And it had no effect whatever, in regard to the question now before us. When was the inception of this note ? In my judgment, it had its inception, when it was delivered by the makers, or either of them, to Hudson, as evidence of a contract. Until then,
New trial granted.