By the Court.
This case is not distinguishable, in principle, from Galoupeau v. Ketchum, 3 E. D. Smith, 175. The referee has found that the note was usurious and void in its inception ; that the defendant Blun, in answer to the plaintiffs’ inquiry, declared it to he a regular business note, and that neither Blun nor bis co-defendants had any knowledge, when this representation was made, whether it was a business note or not, and this finding is sustained by the evidence.
The plaintiffs having, upon this representation, exchanged their check and two notes for a note that was absolutely void, ■.vero, when they afterwards discovered the representation to D; false, entitled to have their cheek and the two notes returned to them, upon tendering back the note they had received in exchange. It is wholly' immaterial whether the defendant K-Ueved it to be a business note or not, or whether they knew the real character of the note ; for if, in the first place, I 'th Blun and the plaintiffs acted, in making the exchange, up-•■u the assumption that the note, which never had any validity at all as an obligation, was a valid business note, the plaintiffs, upon discovering the mutual mistake, had a right to rescind the contract of exchange ; (Martin v. McCormick, 4 Seld. 331; Hitchcock v. Giddings, 4 Price, 135; Bennett v. Hudson, 21 N. Y. Repts. 238; 1 Story Eq. Juris. § 103), or if, the second place, Bum knew the real character of the note, wen he was guilty of a fraud in making the renreseatation '■:i¡un he did, and the plaintiff,.upon that ground, would be enied to rescind the exchange. The case of Haycraft v. " - '■'!/ (2 East. 92), upon which the defendants relyq was an /-■ non to recover damages for " & false, fraudulent and deceit