Pindar v. Barlow

Redfield, Ch. J.

I. In regard to the deposition admitted in this case we have found no serious difficulty. There seems to be a necessity, practically, that the justice should possess the power to adjourn the taking of a deposition. Serious inconvenience,, and sometimes the entire failure of the proceeding might occur if no such power existed. If it be conceded to exist, it must rest in the discretion of the magistrate to be exercised, as every legal discretion must be, in a reasonable and proper manner. The only limitation, which it now occurs to us it is-necessary to annex to its exercise, is, that it shall not be so exercised as to deprive the adverse party of a reasonable opportunity to participate in the taking. Nothing of that kind appears in the present case, but the contrary.

II. In regard to the case upon the merits we have had more difficulty. If the case came under the act of 1852, which in terms provides that no action shall be maintained upon any contract given upon consideration of the sale of intoxicating liquors without license, it would seem difficult, without too much refinement, to hold that this action could be maintained, for it is an action counting upon the contract in its original form. And it is questionable in my mind, how far, under such a statute, it is fair to say that the indorsee or bearer of a note or bill, who takes it while current for value, can sue upon the instrument, without a violation of the prohibitory clause referred to. The "Massachusetts courts seem to have sustained such actions, and their^statute in this respect is said to be the same as the statute of 185^. ( That court also decided that the provision in the statute prohibiting all actions *533 of every kind brought on account of spirituous liquors, only extended to actions brought to recover the price of liquors sold. The courts in Maine held that the same provision in their law extended to all actions brought to recover for liquors kept against law, whether for the price, or for the possession, or the value, when taken tortiously by a stranger. This latter view-is obviously the most reasonable view of the subject.

But the present case is free from this question, this note having been given before the statute of 1852 took effect, and while the statute only imposed a penalty for illegal sales. This will render the contract void in the hands of the original party. The authorities are uniform upon this point.'

But a bona fide holder for value of negotiable paper, taken while current, is not affected by such a defence. That this was negotiable paper in the form in which it was taken, being payable to bearer, can not be questioned, and being payable generally, without naming any time, it is the same, we think, as if made payable on demand. It was not then overdue, if taken within two days. The English courts of late have extended the term of the currency of such paper to many months. The case finds too, that the plaintiff took the note bona fide, and for a valuable and full consideration.

The only remaining question would seem to be whether the fact that the plaintiff’s name is inserted in the note before bearer, shall operate to exclude the defence, which is confessedly _ 'admissible, if the note were made payable to bearer only. It would seem upon principle, that it should not have that effect. It is certainly not an effect which business men would be likely to calculate or expect. No ease much in point is shown except that of Nelson v. Cowing, 6 Hill 336 . And this does not hold that it makes any difference whether the note is made payable to bearer, or to A. B. or bearer, if the note is bona fide negotiated for value to A. B. But in regard to the burden of proof, it intimates there may be some difference. The person named in the note may with more show of reason be presumed cognizant of the consideration than a mere stranger. But when the fact is shown that he did not know, the cases seem to be precisely the same in principle.

*534 The important question is, was the note in the negotiable form so it will pass by delivery merely ? And was it in fact negotiated ibona fide and for value ? Both these questions must surely be answered in the affirmative. This, we think, does exclude the defence of illegality, unless it is affected by the express terms of some statutory provision which is not shown in the case.

The judgment of the county court is affirmed.