The opinion of the Court was read at the ensuing December term by
Sheflet, J.The suit is upon a promissory note, payable to Edward Fernald or bearer on demand, with interest, and by him indorsed. The defendant offered certain proof, and the question presented is, whether if made, it would constitute a good defence.
The case does not in terms state, that the purchase of the note was made by Amos Sprouie while he was a deputy sheriff, and for the purpose prohibited in the statute, c. 158, <§> 16. But as he is stated to have been such an officer without any limitation of time, and to have made the purchase for the purpose of making a profit from the fees for the service of the writ in this case, the fair inference is, that the purchase was made, while he was a deputy sheriff, and for that purpose; and as that fact will be open for proof on the trial, no injustice can be done by making it for the purpose of presenting the question for decision.
Amos Sprouie must upon the testimony offered, be considered as the party plaintiff in interest; and the same defence may be made, as if he were a party to the record.
The statute c. 158, § 16, among other provisions, declares, that if any deputy sheriff shall give any valuable consideration, with intent thereby to procure any account, note or other demand, for the purpose of making a profit to himself from the fees arising from the collection thereof by a suit at law, he shall be punished by a fine not exceeding five hundred dollars, nor less than twenty dollars. Assuming that the testimony offered would prove, that the party in interest being the real *265plaintiff in the suit, though not the nominal one, had violated the provisions of this statute by becoming the owner of the note in suit, it is contended that this would not prevent his recovery, because the note was justly due from the defendant, for a legal and valuable consideration. But in such case, any illegality in the transfer will vitiate the title of one, who derives it through a violation of law, to which he was a party; although one not a party to such violation of law and holding it bona fide, might recover it. The doctrine is stated in Story on Promissory Notes, <§> 193, and the cases are collected in notes appended to that section.
This doctrine has in some of the decided cases been denied, while in others it has been admitted to be applicable to the usurious transfer of a note. Whatever may be the true doctrine respecting usurious transfers, it does not prevent the operation of the rule in the case of a transfer absolutely prohibited or made penal by statute.
In such case the party obtains no title, which a court of justice will enforce. Strong v. Tompkins, 8 Johns. 97. If it were to do so, it would lend itself as an instrument to enable one to obtain the unlawful gains designed to be obtained by an act prohibited by law.
According to the agreement of the parties, the action is to stand for trial.