¶1delivered the opinion of the Court.
¶2With deference, it seems to me, the Judge was mistaken in excluding the evidence offered by the defendants. The reason for rejecting that evidence, may be collected from the charge to the jury, to wit: That “ the note was not usurious in its inception, but was given for the purpose of being passed to Jlverill, for its full value.”
¶3The mistake, I apprehend, consisted in the misapplication of the terms “ purchase” of the note; and the “ inception” of the note. By its inception, I understand, when it was first given; or when it first became the evidence of an existing contract. It has no legal inception until it is delivered to some person, as evidence of a subsisting debt. Merely writing and signing a note, and retaining it in the hands of the drawer, forms no contract. No person had then a right of action on it, any more than if it had been blank paper. This note was drawn payable to Averill or bearer ; but it never was delivered to him, nor had he ever any interest in it. As to him, therefore, it had no inception. His name was used like that, of a fictitious payee in bank notes : And it had no effect whatever, in regard to the question now before us. When was the inception of this note ? In my judgment, it had its inception, when it was delivered by the makers, or either of them, to Hudson, as evidence of a contract. Until then, *290no contract existed in regard to the note. And if, as the defendants offered to prove, the agreement between Hudson and the makers was usurious, and the note was first given to S as security for an usurious loan; then it follows, that it was corrupt and illegal in its inception. The counsel for the defendants called it purchasing the note by Hudson ; which was incorrect phraseology, and was calculated to mislead. He did not buy the note as evidence of a previously existing debt, which is the correct sense of the term : On the contrary, he lent money, and took this note from the makers, who then issued it, for the first time. As well might it be said, that a man buys a note, who sells a horse, and takes the note of the purchaser for the price. (Munn v. Commission Company, 15 Johns. Rep. 55. Powell v. Waters, 17 Johns. Rep. 176.) We are, therefore, of opinion, that a new trial ought to be granted.
¶4New trial granted.