majority">Hosmer, Ch. J.

Whether the charge to the jury, that the note declared on first became an effective instrument on the delivery of it to the plaintiffs, is the only point on which I shall express an opinion. The resolution of this question entirely depends on the construction of the receipt, given by sheriff Phelps, on the reception of the note. From this it appears, that he had in possession an execution for 129 dollars, 84 cents, against the defendant, in favour of the Eagle bank, to secure the payment of which, Clark made his note for 150 dollars, payable at the Eagle bank, in 90 days, to the order of Chester Whittelsey, and procured the said Whittelsey and Roger Whittelsey to indorse it. In this condition, the defendant delivered the note to the sheriff, at the same time contracting, if he should not pay the whole amount of the above execution, and the fees thereon, in ten days, that it might be sold in market, or otherwise be disposed of, and the avails be applied in payment of the execution: If a balance should remain, it was to be retained in the hands of the sheriff, until the defendant should call for it.

Without adhering too tenaciously to the words of the contract, it is very obvious, that the note was made and delivered in security of the execution; and to attain this object, the construction should be favourable; and if necessary, most strongly against the defendant. Any exposition of the agreement, which would have a manifest tendency to defeat the in*157tended security, cannot be in accordance with the intention of the parties. The opinion expressed in the charge to the jury, was of this description: If the note was not an effective instrument, in the hands of the sheriff, anterior to the sale of it, during this period, it was no security to him; and the death of the maker, the impossibility of selling the note, or other similar causes, would frustrate the principal object of the negociation. On the other hand, there exists no good reason to deny, in behalf of the sheriff, who unquestionably had an interest in the note, the usual construction, resulting from the delivery of the instrument to him; more especially, when this, in no respects, is opposed to the defendant’s interest, but is necessary to effectuate the security intended. For much stress has been put on on the express authority given to sell the note in the market; as if this were incompatible with the idea, that it was intended to be effective in the sheriff’s hands. Although the note existed, when in his possession, in full force; yet, out of abundant caution, it was a point of prudence, to take an agreement from the defendant, which should preclude all future controversy relative to the loss, which might arise, from a forced sale of the instrument.

On the whole, I am of opinion, that the note was an effective instrument in the hands of the sheriff, with the superadded power of disposal, should it be necessary, even at a loss, on the responsibility of the maker. In this view of the subject, the note was not usurious in its original concoction, or made with an usurious intent; but it was perfect and available in the sheriff’s hands, and he could have maintained an action upon it against the maker. Munn v. Commission Company, 15 Johns. Rep. 44. 55. By necessary legal consequence, this note, free from the taint of usury, in its origin, he had a right to sell at a discount.

The other Judges were of the same opinion.

New trial to be granted.

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