Bell v. Lent

By the Court,

The demand and notice were prima facie sufficient to charge the endorsers on the note last due. There is no ground for complaint as to the demand, and the notary’s certificate is full as to notice. Indeed, it was correctly directed to Troy for the purpose of charging Eddy & Chubb: it was their place of business, and the residence of one of them.

An objection was taken on the argument to the competency of this proof, *234as going beyond the facts to which the notary is authorized to cer- [ *234 ] tify under the act of 1833. The *point was not made on the trial, which would be a sufficient answer. But on looking at the statute, we are of opinion he did not exceed his authority. It makes the certificate, specifying the mode of giving such notice, and the reputed place of residence of the party to whom the same was given, and the post office nearest thereto, presumptive evidence of ike facts. Statutes of 1833, p. 395, § 8. Here the mode was particularly pointed out, zxA prima fude sufficient in the law to charge the endorsers. There is some difficulty in maintaining the sufficiency of the notice to Eddy & Chubb and McIntyre on the note first due, especially as an objection was taken to it on the trial. Strict diligence should be shown to ascertain the residence of the endorsers, where the notice has been directed to the wrong place. 13 Johns. R. 432.

The material question, however, in the case arises upon the plaintiffs’ title to the notes. There was no sale of them to Whitaker, and therefore the case does not fall within the protection of the principle contained in Cram v. Hendricks, 7 Wendell, 569. The money was advanced by way of loan, upon usurious interest; and the notes transferred simply, as collateral security. It is impossible to uphold this transaction without virtually repealing the statute. The collateral paper must abide the fate of the principal debt to secure which it was given ; that being infected with usury, the whole is void as against these defendants. Then as to the title of the plaintiffs. They sold Whitaker a bill of exchange for cash: failing to make the advance, he afterwards transferred the notes to them simply for collection, the monies due thereon to be applied to their demand against him when collected. They are therefore the mere agents of Whitaker, and of course their title is no better than his. As the case stands, I think, the defendants were entitled to the verdict.

New trial granted, costs to abide the event.