Thimming v. Miller

Wall, Pi J. This was an action upon an alleged promise that is, in our opinion, clearly in violation of the bankrupt law, and void for that reason. Sec. 29 of that act provides that no discharge shall be granted if the assent of any creditor has been procured or the action of the creditor has been influenced by any pecuniary consideration or obligation. Section 35 of the same act provides in the plainest terms that any contract for securing the payment of money to induce any creditor to forbear opposing the discharge of a bankrupt, shall be void, and any creditor obtaining money, on such consideration shall forfeit all share in the estate and double the value so obtained, to be recovered by the assignee for the benefit of the estate. The record before us discloses a contract forbidden by positive provision of law. Ex turpi causa non oi-itur actio. The courts will render no assistance to either party'to an illegal transaction, but will leave them in the position they have voluntarily assumed. Penn v. Bornman, 102 Ill. 524; Banking Co. v. Rautenberg, 103 Ill. 460. It is urged by counsel for appellee that this objection should have been made by demurrer to the declaration, and the parties having taken issue by pleading, are too late in making the objection now. There are some defects that are said to be cured by verdict, but where the declaration as well as the whole record shows there is no cause of action, the point may be made by motion in arrest or upon error. 2 Tidd’s Pr. 1135; Kipp v. Lichtenstein, 79 Ill. 358; Phillips v. Dickerson, 85 Ill. 11. The judgment will be reversed, but as from the whole record' it appears there is no right of recovery, the cause will not be remanded. Reversed.