Holden v. Cosgrove

Metcalf, J. 1. The main instruction given to the jury, on the trial of this case, is sustained by the settled law; namely, that if the note in suit was founded on illegality, the indorsee thereof must show, before he can recover on it, that he gave value for it. Sistermans v. Field, 9 Gray, 331. And all the other instructions were right. 2. The same defence, which the defendant might have made to an action by an indorsee of the note originally given by him, may be made by him in this action on the note given in renewal of the original note. Both notes were given for the same unlawful consideration. Pickering v. Banks, Forrest, 72. Western Bank v. Mills, 7 Cush. 546. Mills v. Rice, 6 Gray, 464. 3. The repeal of the statute of 1852, c. 322, which made unlawful the sales of the liquors for which the note in suit was given, did not legalize those sales, nor affect, in any way, the right of the defendant to maintain this defence. An act which, when it was done, was made unlawful by statute, is not made lawful by the repeal of that statute; though the repealing statute, unless it is otherwise provided therein, bars all subsequent proceedings under the repealed statute. But in the St. of 1855, e. 215, § 39, which repealed St. 1852, it was expressly provided that the repeal should not affect any action already commenced, or which might thereafter be commenced, or any rights acquired or liabilities incurred by virtue of any existing law, on account of anything done before the repeal should take effect. 4. The objection to the admissibility of the defendant’s evidence, under his answer, not having been made until after the arguments to the jury were closed, is not now open to the plaintiff. Burnett v. Smith, 4 Gray, 51. Horne v. Bodwell, 5 Gray, 457. Jones v. Sisson, 6 Gray, 294. Exceptions overruled.