But the consideration of (23) signing a bankrupt's certificate, or withdrawing a petition (24) against it, or (25) joining in the acceptance of a composition, is illegal.

And if the creditor of a banker is also an acting commissioner under his commission, and takes a bill or note for his debt whilst the commission is in progress, he cannot enforce payment of such bill or note. (26)

Especially if he afterwards signed the bankrupt's certificate as such commissioner. (26)

Though he did not prove his debt under the commission. (26)

(23) Sumner v. Brady, 1 H. Bl. 647.

(24) By 5 G. 2. c. 30. § 11. it is enacted, that every bill, note, contract, agreement, or other security whatsoever, to be made or given by any bankrupt, or by any other person, unto or to the use of or in trust for any creditor or cretors, or for the security of the payment of any debt or sum of money due from such bankrupt at the time of his becoming bankrupt, or any part thereof, between the time of his becoming bankrupt and such bankrupt's discharge, as a consideration, or to the intent to persuade him, her or them, to consent to or sign any such allowance or certificate, shall be wholly void and of no effect; and the monies thereby secured or agreed to be paid shall not be recovered or recoverable. And see Smith v. Bromley, 2 Dougl. 670.

[Rice and Bush had made several notes to Forsaith, which he had endorsed to the Wiggins, residents at Boston. Bush being about to obtain a discharge under the insolvent laws, Forsaith, being at New York, opposed it. In consideration of Forsaith's withdrawing his opposition, Bush, April 22, 1812, made a note payable to Forsaith or order for $1000, dating it May 24th, 1812, and a memorandum of the day when it was executed was endorsed. On the 1st of May Bush obtained his discharge. Forsaith on his return endorsed the note to the Wiggins, without informing them how he obtained it. It was held that an action by the Wiggins against Bush on this note could not be maintained. Yates J. giving the opinion of the court, said, "The note was void in law, as a fraud upon other creditors.-But it is contended that this is a defence set up against third persons, who are subsequent holders, for a valuable consideration, and without notice. This could not give validity to the note if void ab initio. By the endorsement on the note of the real date, the plaintiffs had such information as ought to have led to an inquiry into the manner the payee obtained it. The neglect of the plaintiffs to make any inquiry, ought to subject them to the consequences of the transaction between the defendant and Forsaith, the immediate parties. It is, however, manifest, from the face of the transaction, that Forsaith acted as the agent of the plaintiffs; they of course are bound by his acts, and are subject to the same consequences, as if the whole had been conducted by themselves." Wiggin v. Bush, 12 Johns. R. 306.]

(25) Spurett v. Spiller, 1 Atk. 105. Cockshott v. Bennett, 2 Term Rep. 763. Jackson v. Lomas, 4 Term Rep. 166. Cooling v. Noyes, 6 Term Rep. 263.

(26) Haywood v. Chambers, 5 Barnew. and Ald. 753. 1 Dowl. and

[A note given to the creditor of an insolvent, to induce him to become a petitioning creditor under an insolvent act, is void, on account of illegality of the consideration. (a)

And where such a note was given to the creditor by a third person, it was held that the note being void ab initio, the maker was not liable upon it, although he had been indemnified by the original debtor. (b)]

Where however a creditor has joined in a deed of composi

Ryl. 411. In an action by payee of a note against the maker, it appeared that defendant had been a bankrupt and obtained his certificate; that the note was given to plaintiff between the second and third meetings for a debt due before the bankruptcy; that plaintiff was one of the acting commissioners under the defendant's commission; that he did not prove his debt under the commission, but that after he had received the note he signed the defendant's certificate as one of the commissioners. Abbott C. J. thought defendant not a free agent when he gave the note, and nonsuited the plaintiff; and on motion to enter a verdict for plaintiff, the court said a security to induce a commissioner to sign a bankrupt's certificate would be clearly void, and it was against public policy to allow any thing which led to that result: a commissioner has an important public duty to perform, and this would have a tendency to warp his conduct in the discharge of it; and in giving a security under such circumstances, the bankrupt could not be deemed a free agent. Rule refused.

[(a) Eden being about to take the benefit of the "act for giving relief in cases of insolvency," applied to Hurtin, one of his creditors, to sign the petition, and gave Hurtin a note for the amount of his debt, leaving the date blank, and Hurtin, without annexing any affidavit of his debt, put his name, which was the very last, to the petition; though exclusive of him there was a sufficiency in number and value to exonerate the defendant. After Eden obtained his discharge, Hurtin filled up the blank as if the note had been then given, and endorsed it to a third person in trust for one of his relations. Eden afterwards promised to pay the note. It was held that the endorsee could not maintain an action against Eden on the note. Thompson J. giving the opinion of the Court, said, "The transaction was founded in fraud, and against the policy of the insolvent act. The note was void in its creation, and being so, the subsequent promise will avail nothing. As the note was held by the plaintiff as trustee, and for the benefit of some relation of Hurtin, we consider the cause in the same point of view as if the ori ginal parties were now before us." Payne v. Eden, 3 Cain. R. 213.]

[(b) At a meeting of the creditors of Ketcham, an insolvent, Chatterton, one of them, refused to become a petitioning creditor, unless some person would give him a good note for $50, to be deducted from his demand. Yeomans gave him such a note, and Chatterton then signed the petition, deducting $50 from his demand. It was held, in an action by Chatterton against Yeomans upon this note, that the "note was void, as being given against the policy, and in fraud of the insolvent act; and that the note being void ab initio, testimony that Ketcham had indemnified Yeomans was improper." Yeomans v. Chatterton, 9 Johns. R. 295.]

tion, it is (27) not illegal to obtain the security of a third person for such composition.

And therefore a bill given by a third person, as such security, is (27) good;

Though such creditor's composition be thereby secured to be paid at an (27) earlier period than that of the other creditors.

But to stipulate privately for such additional security before joining in the acceptance of the composition, is a (28) fraud on the other creditors.

And if there is a private stipulation for more than the composition money from a third person, and the third person pays the money, he cannot recover upon any bill or note the debtor may give him for reimbursement. (29)

Though the creditor was induced originally to trust the debtor upon upon a representation by such third person of his responsibility. (29)

And refused to consent to the composition without such additional security on the ground of that representation. (29) (a)

(27) Feise v. Randall, 6 Term Rep. 146.
(28) Leicester v. Rose, 4 East's Rep. 372.

(29) Bryant v. Christie, 1 Stark. 329. Back trusted Christie to the amount of £332, on a representation by Bryant of Christie's responsibility. Christie became embarrassed, and offered to compound with his creditors at 10s. in the pound. Back considered himself guarantied by Bryant, and therefore refused to sign the composition deed unless Bryant would promise him the remainder of his debt. Bryant promised accordingly, and Back signed the deed which released Christie: the composition was paid, and Bryant paid the difference: Christie accepted bills to reimburse Bryant, and Bryant sued thereon. But Lord Ellenborough considered this as a circuitous mode of securing Back the full amount of his debt, and a fraud upon the creditors at large, and he nonsuited the plaintiff.

[(a) Where a creditor of an insolvent debtor, who had petitioned to be discharged under the Insolvent Act, obtained from his debtor while in prison, a bill of exchange for his debt; and the debtor was afterwards discharged from the debts in his schedule, which included the debt for which the bill was given, and the creditor endorsed the bill to an innocent holder for a valuable consideration; it was held, that however improper the circumstances might be, under which the bill was obtained from the insolvent, still his discharge was no bar to an action by a bonâ fide endorsee for a valuable consideration. Simpson v. Pogson, 3 Dow. & Ryl. 567.]

Past (30) seduction is a good consideration; future (31) prostitution an illegal one.

A note given to parish officers for a sum certain, to defray the future expenses of a bastard child, is (32) illegal; the officers being authorized by law to take an indemnity only.

[A note given to a person to induce him not to bid at a sale of land on execution, is void on account of the illegality of the consideration. (b)]

Dropping (33) a criminal prosecution, or suppressing evidence thereon, is an illegal consideration: but where a person has been convicted of a misdemeanor, and the court offer that if he will pay a certain sum for the expenses of the prosecution, the sentence shall be for a shorter period of imprisonment than it otherwise would, a note given by him for such sum is (34), as far as respects the consideration, unobjectionable.

And where there are both civil and criminal proceedings, an agreement to compound the civil proceedings and to take a given sum for costs, and to give a bill for the amount, will not make the bill illegal, if the criminal costs do not appear to have been included, and it is no part of the bargain that the criminal proceedings shall be abandoned. (35)

(30) Annandall v. Harris, 2 P. Wms. 432. Cray v. Rooke, Forrest, 153. Turner v. Vaughan, 2 Wils. 339.

(31) Walker v. Parkins, Burr. 1568.

(32) Cole v. Gower, 6 East's Rep. 110.

(b) Caswell and Noble, after a judgment against Eggleston, (which was a lien on his land,) but without any knowledge of it, purchased land of him for a good consideration. The land being for sale on an execution on the judgment, Caswell and Noble agreed with the judgment creditor, that if he would not bid against them, they would pay his execution and $150. Notes were accordingly given by them for this sum.. It was held that no action could be maintained upon the notes against the makers, by a person receiving them after they were due, and who was also acquainted with the nature of the consideration. Kent J. said, "It was a consideration against public policy, which encourages bidding at sales on execution." Jones v. Caswell, 3 Johns. Cas. 29.] (33) 3 P. Wms. 279. Collins v. Blantern, 2 Wils. 349. (34) Beely v. Wingfield, 11 East's Rep. 46.

(35) Harding v. Cooper, 1 Stark 467. In an action against the ac ceptor of a bill, it appeared that plaintiffs had sued the drawer, and taken out a commission of bankruptcy against him, and, on his having obtained his discharge as an insolvent, had indicted him for fraud in obtaining it. They then came to an agreement that plaintiffs should have

So the release by an excise officer of a person apprehended for penalties under the excise laws, is a (36) sufficient consideration for a note given, with the approbation of the commissioners, for the amount of such penalties.

Or if an officer who has a warrant to levy excise penalties take a note for the amount, though such a transaction is to be looked upon with extreme jealousy, yet if there has been no extortion in the officer, nor other improper conduct, the consideration will be unobjectionable, and the note valid. (37)

Especially if the commissioners afterwards approve what has been done. (37)

A (38) recommendation to an office in the king's household, though of a private nature, and not within the statute of the 5th and 6th Edw. 3. a (39) smuggling, an (40) usurious, a (41) stock-jobbing contract, a wager upon the future

2s. 6d. in the pound for their debt, £220 for costs, without taxation, and that the commission should be superseded, and defendant gave his acceptance for the amount. Plaintiffs afterwards consented that the indictment should be quashed. It was urged that this was an illegal consideration; and Lord Ellenborough said, a stipulation to drop the prosecution would, without doubt, have been illegal, but if the civil rights only were compounded, and plaintiffs chose afterwards to forego the prosecution, the transaction was not illegal: and there being no evidence that the costs of the prosecution were mentioned during the negotiation, or included in the £220, or that there was any stipulation for dropping the prosecution, the plaintiffs had a verdict, (36) Pilkington v. Green, 2 Bos. and Pull. 151.

(37) Sugars v. Brinkworth, 4 Campb. 46. Defendant was convicted in excise penalties to the amount of £340, and plaintiff, a supervisor, had a warrant to levy the amount. Plaintiff took defendant's note at two months for that sum, and though he had no previous authority from the commissioners to take it, they approved of it when they knew it. In an action upon the note it was urged, that there might be great abuses if the taking a note for penalties were allowed: and Lord Ellenborough said if there were any reason to think the law had been abused by plaintiff, he would not be allowed to enforce payment; that such a transaction was to be looked to with extreme jealousy; but that here plaintiff appeared to have acted with perfect good faith; and defendant,' to whom indulgence had been extended, was not to criminate his benefactor when nothing wrong had been done. Verdict for plaintiff. (38) Harrington v. Du Chatel, Bro. C. C. 114.

(39) Guichard v. Roberts, Blackst. 445.

(40) 12 Ann. St. 2. c. 16. post, note (63).

(41) 7 G 2. c. 8. See Faikney v. Reynous, Burr. 2069. Petrie v. Hannay, 3 Term Rep. 418. and Steers v. Lashley, 6 Term Rep. 61.