Dearborn v. Nelson

Decided December 5, 1881

Supreme Court of New Hampshire · decided 1881-12-05

Assumpsit, for usurious interest received by Berry, the defendant’s intestate, from the plaintiff. Facts found by a referee. The plaintiff, having paid Berry more than six per cent, interest on notes given for hired money, made an assignment of his claim against Berry’s estate for the usury; and this suit is brought for the benefit of the assignee. At the time of the assignment, the defendant, as administrator, held two of the notes, and they had not been paid.

Relies on Thompson v. Emery · Wiggin v. Damrell · Sanborn v. Little

Good law ✅— No negative treatment on recordhow we know

Decided 1881-12-05

How this case has been cited

Cited by 7 later decisions — most recently July 1958

7 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Doe, C. J.

¶1 The assignee of the plaintiff’s non-negotiable right of action took it subject to the legal defences existing at the time of the assignment. His acquisition of an equitable right did not extinguish or avoid the defendant’s equitable set-off. Sanborn v. Little, 3 N. H. 539; Wiggin v. Damrell, 4 N. H. 69; Duncklee v. G. S. M. Co., 23 N. H. 245; Thompson v. Emery, 27 N. H. 269. The foreclosure of the mortgages operated as payment of the mortgage debts to the value of the property obtained by the foreclosure. The amount of the payments thus received may be found in this suit. The pending negotiations for a settlement are not a payment or discharge of the debt.

¶2 Case discharged.

Stanley, J., did not sit: the others concurred.

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Case posture

Posture: ASSUMPSIT, for usurious interest received by Berry, the defendant's intestate, from the plaintiff. Facts found by a referee. The plaintiff, having paid Berry more than six per cent. interest on notes given for hired money, made an assignment of his claim against Berry's estate for the usury; and this suit is brought for the benefit of the assignee. At the time of the assignment, the defendant, as administrator, held two of the notes, and they had not been paid. They were originally secured by mortgages, which have been foreclosed on land of less value than the amounts of the debts. In a suit brought on one of the notes, cattle were attached and sold by the officer, against whom suits have been brought by the plaintiff. These suits and negotiations for their settlement are pending; and the referee is of opinion that a compromise will be effected that will include the note.

Source: CourtListener

Court

Supreme Court of New Hampshire