Field v. Tibbetts

Walton, J. We think the note must be regarded as dishonored at the time it was indorsed to the plaintiff (4 Allen, 562), and was therefore subject to the defense of a want or failure of consideration. But we do not think the fact, that it was then overdue, subjected it to the defense that it was given in part for intoxicating liquors. The effect of our statute is that such a defense shall not extend to negotiable paper in the hands of any holder for a valuable consideration, and without notice of the illegality of the contract. This protection is not limited to such holders as take the paper before it is due; it is extended in terms to “ any holder for a valuable consideration, and without notice of the illegality.” (Act of 1858, c. 33, § 27.) In the trial of such an issue, the fact that the paper was or w'as not overdue when the plaintiff' took it, seems to be immaterial. The question is not whether the paper was or was not overdue, but whether the plaintiff is a holder for value and without notice of the illegality of the contract. If he prevails upon these points, he brings himself within the terms of the statute, and is entitled to its protection. Such a defense must be governed by our statute, and not by the rules of the mercantile law. By the common law, the fact that the note was given for intoxicating liquors would be no defense. Such a defense, as well as its limitations, is created and regulated by our statute, and not by the mercantile law. Under our statute, the fact that a note is overdue, is not notice, express or implied, that it was given for intoxicating liquors. “ Case to stand for trial. Cutting, Kent, Dickerson, and Barrows, JJ., concurred.