Norris v. Langley

| Superior Court of New Hampshire | Jul 15, 1849

Woods, J.

The payee of the note in controversy could not have maintained an action upon it against the maker, because the consideration for which it was given was a sale of commodities, the sale of which was prohibited by law. R,ev. Stat., chap. 117, sec. 6. Where the law prohibits parties from making a particular contract, it will as of course, and without declaring such contracts void, deny to* the parties to it when made, the aid of courts in enforcing-it. And the condition of the party is no better who has' taken a promissory note, or an acceptance, to secure to himself' the performance of the illegal stipulation, for the illegality of the consideration may be shown, in evidence, and the action thereby defeated.

But when such a note or acceptance becomes the property of a third party by indorsement and delivery for a good consideration, according to the custom of merchants, it is not liable to such a defence on the part of the maker. Provided the consideration of the note is not such that the law expressly pronounces the instrument void, in which case no transfer can make it available, except as between the indorser and indorsees, the person who takes mercantile paper innocently, being no party to the original consideration, is not presumed to know and is not bound to inquire concerning it.

The law of this State prohibits, in general, the sale of such commodities as were the subject of the sale which formed the consideration of the note in controversy, under a penalty; but does not pronounce the note, given for such consideration, void. It appearing by the case to be the property of one into whose hands it came innocently, and for value, before due, he may maintain his action upon it. According to the agreement of the parties, therefore, by which the case has been submitted, there must be

Judgment for the plaintiff.