VIII. Right of Endorser under Insolvent Acts of 1788,
1819, and Revised Statutes.
See Frost v. Carter, 449. Strang v. Light, 543. See vol. 1, p. 73, 74, n. (a.)
IX. Damages on protest of.
13. One of a set of three bills of exchange on London was accepted and
protested for non payment, held,
That it being a bill remitted for the payment of an antecedent debt no dam-
ages were recoverable. Kenworthy v. Hopkins, 436. See vol. 1, p. 107.
X. When payment of a precedent Debt.
14. A bill of exchange drawn by one of the plaintiffs, on another of their
house in London, and protested, is not a payment of a former debt, or
deemed an execution of a former contract.
Murrays v. Gouverneur, 606. See vol. 2, p. 438.
15. A. took a promissory note of B. for a debt due from B. and C., as part-
ners, after the partnership was dissolved, and gave a receipt for the note,
when paid, to be in full of the debt. In an action against C. on the origi-
nal debt it was held that the accepting the note was no payment of the
precedent debt, and that C. was liable. Herring v. Sanger, 71, 533.
Cases and authorities on this question, 72, n. (a.)
16. If a note of hand be payable at a future day, it suspends the time for
payment of the prior debt. Herring v. Sanger, 533.
17. Where A. made a note, payable to B., who endorsed it, merely for the
accommodation of A., who passed the note to C. to raise money on it, by
having the same discounted in the market, and C. discounted the note at a
premium of three and one-fourth per cent. per month, and after deducting
the discount, applied the proceeds to the payment of moneys lent by him
to A and, afterwards, in the course of his business, passed the note to D.,
who brought an action against B, the first endorser; it was held, that the
note, though endorsed by B. for the accommodation of A., passed imme-
diately from A. to C., and that the transaction in its inception was usurious,
and the note therefore void. Wilkie v. Rosevelt, 66. See 206, 532, 548.
18. If a promissory note is given for a usurious contract, it is absolutely void,
even in the hands of an innocent person, who has taken it in the fair and
regular course of trade, without knowledge of the usury.
Usury consists in extorting or taking a rate of interest for money, beyond what
is allowed by law. It is not necessary that money should be actually ad-
vanced, in order to constitute the offence of usury, but any pretence of
contrivance whatever, to gain more than legal interest, where it is the
intent of the parties to contract for a loan, will make that contract usuri-
ous. Per Thompson, J.
When a contract is usurious in its inception, no subsequent transactions will
cure it; but if the original contract is not usurious, nothing done afterwards
can make it so. Per Thompson, J.
Proof of usury generally depends on circumstances, and where those circum-
stances are so strong as to produce absolute conviction in the mind, they
are certainly entitled to as much weight as direct and positive testimony.
Per Thompson, J. Wilkie v. Rosevelt, 206. See 532, 548.
Cases and authorities, 213, n. (e.)
XII. Construction of Act of July 6, 1797, laying Duty on
Stamped Paper.
19. Bank checks are not within the act of congress, (cong. 5, sess. 1, c. 1, s.
11,) 6th July, 1797, laying a duty on stamped paper.
Conroy v. Warren, 259, 560.
XIII. Action on.
1. Right of.
20. One of a set of three bills of exchange on London was accepted and
protested for non-payment, held,
That the endorser here was bound to pay on the return of one of the set
which was not protested with the protest on the other.
Kenworthy v. Hopkins, 436. See vol. 1, p. 107.
21. Endorsee against the maker of a promissory note given in Connecticut,
where by the lex loci it was not negotiable; held, that this was no objec-
tion to an action here in the name of the endorsee. The lex loci must be
pleaded subject to the mode of redress by our law.
Lodge v. Phelps, 441. See vol. 1, p. 139.
22. Non assumpsit as to all except forty cents, and payment of the forty
cents, with notice of set-off of much larger sums; held,
1st. That the defendant is not permitted, in any case, to set off more than
the sum pleaded; and
2d. That the plaintiff suing as endorsee of a promissory note against the
maker, and the payment set up being made to the payee of the note, the
endorsee would not be affected by it.
Prior v. Jacocks, 439. See vol. 1, p. 170.
a. Inquiry into Consideration.
23. The land of A, was advertised for sale by the sheriff on an execution
against A., at the suit of B. C. who had purchased the land without
knowing of the judgment and execution, agreed with B. who attended the
sale, that if he would not bid against him he would pay B. the amount of
his execution, and give him his note for the further sum of 150 dollars,
and B. acceded to the terms and desisted from bidding.
In an action on the note against C., by the second endorsee, to whom it had
been negotiated, after it became due and with a knowledge of the circum-
stances, under which it was given, it was held that the consideration of
the note might be inquired into; and that the consideration being uncon-
scientious, and against public policy, the note was void.
Jones v. Caswell, 29, 529.
b. Proof of Consideration.
24. The holder of such a check or bill is, prima facie, the rightful owner,
and is not bound to prove a consideration, unless circumstances of suspicion
appear. Cruger v. Armstrong, 5. See 528.
25. The holder of a note, check, or bill, payable to bearer, need not prove a
consideration, unless it is suggested that the possession has been obtained
by fraud. Conroy v. Warren, 258-2. See 560.
26. A person is not a competent witness, to impeach the validity of a nego-
tiable note or instrument, which he has made or endorsed, though he is
not interested in the event of the suit.
The payee and endorser of a promissory note, who had been discharged un-
der the bankrupt law of the United States, and had released all his inter-
est, was held to be an incompetent witness, to prove that the note was
given for a usurious consideration.
Winton v. Saidler, 185, 546. Stewart v. Currie, 185, 546.
These cases overruled in New York. Cases and authorities upon this rule
197, n. (b.)
II. Bond to save harmless against a Mortgage.
1. The bond of an infant, although he fraudulently represented himself to be
of full age, held, void at law.
Conroe v. Birdsall, 436. See vol. 1, p. 127.
II. Bond to save harmless against a Mortgage.
2. On a sale of lands a bond was given by the grantee to save the grantor
harmless against a certain mortgage, which was an incumbrance on the
VOL. III.
land; held, that the grantee shall also be indemnified against the bond ac-
companying the mortgage, and for which the mortgage was given as a
collateral security. White v. Villiers, 439. See vol. 1, p. 173.
An agent who effects a policy in the name and for the benefit of another,
cannot tranfer or pledge the policy as a security for his private debt; the
creditor who takes it must, from the face of the policy, have notice of the
interest of the assured, and if he receives money upon it must refund, ex-
cept as to the mere commissions of the agent.
In this case too the agreement made by the agent with the defendants, if he
had power, would not entitle them to keep the money.
Foster v. Hoyt, 510. See vol. 2, p. 327, 329, n. (b.)
A Brothertown Indian is amenable, for the murder of his wife, to our law.
Note-It was formerly considered that an Oneida Indian was not, for a
crime committed against one of his tribe.
In re George Peters, 518. See vol. 2, p. 344.
1. Jurisdiction.
II. Parties to Suits in.
III. Limitation of demands in.
IV. Relief of Parties in pari delicto.
1. The whole case being before the chancellor, although a specific and not
general relief was prayed, he ought and may decide on the whole merits.
Armstrong v. Gilchrist, 607. See vol. 2, p. 424.
2. In a suit in equity, the bill must call all necessary parties, who may be
affected by the demand, before the court. If, upon the face of the bill, it
is apparent, that any whose rights may be affected are not made parties,
the defendant may demur, or if the want of parties do not appear, he may
plead it. If it be disclosed by the answer, the complainant may imme-
diately amend, by adding the proper parties. Per Radcliff, J.
The court is, at all times, vigilant in requiring proper parties against whom
its decrees are to operate. It will arrest the proceedings in any stage of
the cause, in order to obtain them, and will not finally decree, if the want
of parties appear on the hearing of the cause. If it does, the decree may
be reversed, and if not reversed, yet none but such as were parties to the
suit, and their representatives, can be bound by it. Per Radcliff, J.
A. being indebted to B. on the 23d March, 1787, assigned to him, as security
for the payment of the debt, certain lands and a lease in fee, for the same.
B. executed a bond to A., conditioned, that in case the debt and interest
were paid on or before the first of June, 1788, he would reassign the lease
and premises to A. and give him a receipt for the debt. The debt not
being paid at the time, B. took possession of the premises under the assign-
ment, in July, 1792, and assigned his interest in the lease and premises to
C. and D., who took possession thereof. A. afterwards brought a bill to
redeem the premises, on the ground that the transaction between him and
B. amounted to a mortgage, and on appeal from the decree of the court of
chancery, it was held, that C. and D. ought to have been made parties to
the suit, and that the decree of the court below, for that reason, was re-
versed, with liberty to the respondent to have his bill dismissed in the court
below, or to an end it, by adding all proper parties; and in that case, the
evidence taken to stand, as between the present parties, saving all just ex-
ceptions, and that each party, in this court, pay his own costs.
Hicock v. Scribner, 311, 610.
Cases and authorities on this rule, 322, n. (a.)
3. A. being indebted to B. by a promissory note, in the sum of $1,491, as
collateral security. for the payment, endorsed to B. another note made by
C. to A. or order, for $1,551, and at the same time delivered to B. a mort-
gage executed by C. to A., to secure the payment of the note so endorsed;
but made no assignment of the mortgage in writing. B. filed a bill against
C. for the sale of the mortgaged premises, to pay his note. It was held,
that by the endorsement of the note, and delivery of the mortgage, B. had
an equitable (if not legal) interest in the mortgage; but that A., if he had
not the legal estate, was interested in the subject, and ought to have been
made a party, as he was entitled to recover back the mortgage on pay-
ment of the $1,491. And the decree of the court of chancery ordering a
sale, &c, was reversed, with liberty to B. to have his bill dismissed, or to
add proper parties, on payment of the costs in the court below.
Johnson v. Hart, 322, 608.
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