
    
      PERRY vs. FRILOT.
    
    Appeal from the court of the fifth district.
   Porter J.

delivered the opinion of the court. This case presents a single question, but it ⅛ one which has arisen for the first time in thi* state, and it is of considerable importance.

of a^Ither'tn pay part oí the de'ftt of h¡s solvent s;)n,to a creditor, insofvent.^nd prot* cutio*, and promises t procure a ⅛™»! on°b*: 1>Swithout6^ good consideration void

gon tyie (Jefendant was indebted to the plaintiff and became insolvent. After the . . of his bilan, or immediately previous ° J 1 thereto, the plaintiff called on his father and told him that his son had acted fraudulently in his failure, and that unless he, the father, would pay a proportion of the debt due the plaintiff, he would prosecute the son criminally ; but, if the defendant would comply with the demand ⅜ * tlie plaintiff would obtain a discharge from the other creditors, and give his own.

It appears clearly, from the evidence, that the defendant, influenced by these menaces, and moved by parental affection, gave his three several notes to the plaintiff, payable at different times, for $800 each ; that these notes were afterwards surrendered and in lieu of them, the three obligations, given, on which this suit is brought.

The defendant sets up, as a defence to the payment, the illegality of the consideration ; he asserts the notes to be null and void.

The evidence does not shew whether the conduct of the son was fraudulent or not. i But the want of proof on this head cannot affect r the conclusion to which our duty requires us come. If it was not fraudulent, the plaintiff practised a gross fraud and deception on the defendant. If it was fraudulent, he cannot make the promise to conceal that fraud the basis of an action in a court of justice. The consideration was immoral, and society cannot lend its aid to enforce obligations entered into in contravention of those regulations which have for their object the enforcement of a great purpose of public policy. The rules established by the legislature in relation to insolvent debtors are intimately connected with private faith; public morals; the maintenance and extension of that commerce which must rest, in a great measure on credit; and that confidence which man can repose on his fellow man. Their end is two-fold—to protect and relieve the unfortunate, and to punish the fraudulent. The consideration held out by the defendant to the plaintiff for these notes, was a promise to defeat the latter purpose. Not only did he engage to be inactive and remain silent where his duty as a citizen required him to speak out, but he promised he would get the other creditors to sign ; that is, that he would deceive them. and deceive his country too, which punishes with infamy, and the pains and penalties attached to perjury, the debtor who acts fraudulently in making a surrender of his effects. The defendant’s counsel has read from English and American reports to shew, that in cases like this, courts of justice have refused to enforce obligations made in contravention of the policy of their bankrupt laws. They go the whole length for which the appellant contends. But we do not rest our judgment on them. The principles which repel the action are in our own law. They make a part of the very elements on which society is formed. An obligation with an unlawful cause, says our code, can have no effect. The cause, says the same work, is illicit when it is forbidden by law, when it is contrary bonos mores, or to public order. That the cause of the obligation on which this suit was brought was such, not a doubt exists on our minds. C. Code, 264, Arts. 31 & 33; Acts of the Leg. 1817, 136, 21; 3 Caines, 212; 3 Durnford & East, 17; 9 Johnson, 295; 12 Ibid. 306; 2 Durnford East, 763.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.

Brownson for the plaintiff, Baker for the defendant.  