Phelps v. Thomas

72 Mass. 327

Opinion

Metcalf, J.

The question is, whether the testimony at the trial brings the case within the provision in St. 1848, c. 304, § 9, that the discharge of an insolvent debtor “ shall be null and void,, if the debtor, or any person in his behalf, shall have procured the assent of any creditor thereto by any pecuniary consideration.” It is suggested for the defendant, that the assent to his discharge, procured by his promise to pay some of his creditors’ claims in full, was not procured by a “pecuniary” consideration. This, however, was not much relied on, and we can give no heed to it.

The other ground taken for the defendant is, that such promise was void for illegality, being made on an illegal consideration, and therefore there was no “consideration” for it, within the meaning of the statute. Doubtless the promise was void for illegality, by the principles of the common law. Ramsdell v. Edgarton, 8 Met. 227. Tuxbury v. Miller, 19 Johns. 311. Sumner v. Brady, 1 H. Bl. 647. And it was such illegal and fraudulent promises which the statute intended to prevent or to punish. There could not be a valid consideration for a contract, made by the defendant with any of his creditors, that he would pay their claims in full, as an operative inducement to their assent to his discharge. Exceptions overruled.