Payne v. Eden , 3 Cai. Cas. 213 ( 1805 )

Per-curiam, Delivered by

Thom?son, J.

This action, I think cannot he sustained. The consideration for which the note • in question was given, undoubtedly Was, that the payee should become, under the insolvent act,. a petitioning creditor, for the maker, though for a debt' bona jide due. Why the defendant, under -the circumstances stated in the case, should be induced to give the note, is not easily discernible. He had a competent number of petitioning creditors, without Hurtin, But, whatever the reason might have been, the, inducement for giving the note, according to the facts stated in the case, was, that Hurtin should become a petitioning creditor* I consider the transaction to have been founded in fraud, and against the policy of the insolvent act. Although others might not have been induced to be-come petitioning creditors by Hiirtirls example, yet md-tives of humanity might have influenced them to it, for the purpose of extricating the defendant from his embarrassments, and which they ought, and probably would have withheld, had they supposed him liable to any of his creditors after his. discharge. If this note be valid, Hurtin not only- secured to himself a benefit not common to all the creditors, but will receive more than the amount of his demand. He receives the dividend of the insolvents estate, which, for any thing that appears, might haye been twenty shillings in the pound, and besides, recovers hie whole debt against the defendant, on the note. This would be a fraud upon the other creditors; for, if Hurtinrs demand be extinguished by the note in question, the dividend of the insolvents estate, among his other creditors, must be increased. I therefore view the transaction in no other point.of light, than as founded in fraud, the note.consequently void in its creation, and being so, the subsequent promise will avail nothing. Contracts not founded in fraud, qr on.immoral considerations, may be revived by subsequent promises, though before such promise, there was no legal remedy. This, however, applies only to cases where the contract is voidable, and not where it is absolutely void* In such cases, no subsequent promise can revive it. It is a' mere nudum pactum. ' Hue tin's debt was annihilated by the defendant’s discharge under the insolvent act, and he was under no obligation in equity or good conscience, to pay the debt, so as to raise a consideration for the subsequent promise.

I take it for granted, from the admissions stated in the case “ that the note in question was held by the plaintiff as “ trustee, and for the benefit of some relation of John H. “ HurtinJ that we are to consider the cause in the same point of view, as if the original parties were now before us. Under these circumstances, the opinion of the court is, that the defendant is entitled to have judgment.