Bruce v. Lee

Per Curiam. This cause comes before the court, oil a general demurrer to the second and third pleas. The action is in debt on a bond, the condition of which is, that the defendant should, within fifteen days after the discharge of James Elliot, under the insolvent act, procure and deliver to the plaintiff, the said James Elliot’s note, with approved indorsers, for the sum of 1,231 dollars and 36 cents. The pleas allege, that Elliot was proceeding to obtain the benefit of the insolvent act, and that on the day appointed for the hearing of the creditors, in opposition, the plaintiff, being a creditor, appeared and showed cause against the discharge ; and that, afterwards, and before Elliot was discharged, the defendant gave the bond in question, the consideration for which was, that the plaintiff should withdraw his opposition to Elliot’s discharge. The demurrer is well taken. The consideration for the bond was illegal, and against the true intent and policy of the insolvent act. It is fairly to be intended, that the opposition made by the plaintiff, would have been successful, and of course, that Elliot was not entitled’ to his discharge, either on account of fraud, or some other cause equally fatal. It was, therefore, a fraud upon the creditors, in aiding the discharge of a person not entitled to it. - The opposition of the plaintiff might have lulled them to sleep, knowing, or presuming probably, that this alone, if persevered in, would defeat the insolvent. This case falls precisely within [413] the decision of this court, m the case of Waite v. Harper, (2 Johns. Rep. 386.) the consideration for the promise there was that the plaintiff would not oppose the defendant’s discharge, under the insolvent act. The court said that the consideration for the promise was illegal, and founded on fraud, being made for the purpose of stifling a due scrutiny into the claim of the defendant to a discharge under the insolvent act. The present action being founded on a specialty, does not vary the case; the seal does not preclude an inquiry into the consideration, if illegal and fraudulent. The principle adopted by the court, in Waite v. Harper, is recognised in all the cases cited by the plaintiff’s counsel $ and it is a principle which will not be found to. have been questioned by any adjudication. The bond having been given by third persons, and not by the insolvent, cannqt alter the character of the transaction, according to the principle adopted by the court, in the case of Robson v. Caize, (Doug. 228.) We are accordingly of opinion that the defendants are entitled to judgment. Judgment for the defendants.