Charles v. Davis, Ex'r.
Supreme Court of New Hampshire
Assumpsit. Facts found by a referee. The plaintiff having given a note secured by mortgage, and a judgment of foreclosure having been rendered against him for the amount of the note, he paid it, and brings this suit to recover back a part on a claim that usurious interest was a part of the consideration of the note.
1Opinion of the CourtDoe, C. J.
The judgment rendered against this plaintiff in the suit in which he could have pleaded usury, is conclusive evidence of the legality of the mortgage-note. Cooke v. Jones, Cowp. 727; Edmonson v. Popkin, 1 B. & P. 270; Flint v. Sheldon, 13 Mass. 443, 452, 453; Thatcher v. Gammon, 12 Mass. 267; Footman v. Stetson, 32 Me. 17; Tibbetts v. Shapleigh, 59 N. H. 319. “ If there be a bona fide legal process under which money is recovered, although not actually due, it cannot be recovered back, inasmuch as there must be some end to litigation.” Cadaval v. Collins, 4 A. & E. 858, 867.
Judgment for the…
2Cases cited3 opinions
- Flint v. SheldonMassachusetts Supreme Judicial Court · 1816
- Thatcher v. GammonMassachusetts Supreme Judicial Court · 1815
- Footman v. StetsonSupreme Judicial Court of Maine · 1850
3Cited by2 opinions
- Circle v. Jim Walter Homes, Inc.Court of Appeals for the Tenth Circuit · 1981
- Roy M. Circle and Wanda J. Circle, on Behalf of Themselves and Others Similarly Situated v. Jim Walter Homes, Inc., a Corporation, and Mid-State Homes, Inc., a Corporation and Jim Walter Corporation, Rayfield Smiley and Evelyn C. Smiley, on Behalf of Themselves and Others Similarly Situated v. Mid-State Homes, Inc., a CorporationCourt of Appeals for the Tenth Circuit · 1981