Tuxbury v. Miller

19 Johns. 311

• Court: New York Supreme Court
• Decided: January 15, 1822
• Status: Published

Opinion

Per Curiam.

As to the mode of proceeding to assess the damages, it may, perhaps, be resolved into a matter of practice which this Court could not control. It is, however, the most fit and proper course, that the jury xvho are to try the issues in fact, should also assess the damages. But we are of opinion, that the judgment of the Court below on the demurrer was erroneous. The agreement in pursuance of which the bond was given, was, in judgment of law, a corrupt agreement. The bond was given as a reward to the plaintiff, for not opposing the discharge of the insolvent. The transaction implies that there was good ground for opposition, and that, if such opposition had not been withheld, the insolvent could not legally have obtained his discharge. Such bargains are against public policy, and the true intent of the act; for they tend to facilitate fraud, by screening it from scrutiny. (Waite v. Harper, 2 Johns. Rep. 386. Bruce v. Lee, 4 Johns. Rep. 410.) We are, therefore, of opinion, that the judgment of the Court below ought to be reversed.

Judgment reversed.