9 Johns. 295 | N.Y. Sup. Ct. | 1812
The note on which the suit below was brought, was given to Chatterton in payment of part of his demand against Kekham, and upon the evident understanding and confidence, that he should become a petitioning creditor, under the insolvent act, for the residue of his demand, as he accordingly did. The note was, consequently, void, as being given against the policy, and in fraud of the insolvent act of the 3d of April, 1801. By that act, the petitioning creditor makes affidavit that such a sum is due, of will become due, and that he hath not received from the insolvent, or any other person, any payment of part of his demand, in money or by sale, See. or any gift, or reward, upon any contract or confidence, that he should become a petitioner. Here Chatterton did receive payment of part of his demand, by delivery of a thing in action, i. e. the note, and upon the confidence- that he should become a petitioner. The demand here, in the oath which the creditor takes, is not to be confined to the sum already mentioned in the affidavit, for that would be an absurd construction of the act. After the creditor has already said that such a sum was due, it would be idle to swear further that he has not received payment of part of it The statute refers to his pre-existing demands, whenever, and whatever they may be. He must receive no part, in consideration of bis becoming a petitioner. If he holds two notes against the debtor, he must not receive payment of one of them, in consideration of becoming a petitioner for the other. The policy of the statute is to preserve just dealing, equality, and good faith between the creditors; not that one creditor should be induced to become a petitioner for his whole demand, by the apparently benevolent example of another, who has secretly extorted nineteen twentieths of his demand, on the condition of becoming a petitioner for the remainder. This position being established, it follows, that the questions admitted by the court below to be put to the witness, were irrelevant, immaterial, and, consequently, improper. The testimony, thus admitted, tended to mislead the jury from the true point, and induced them to act upon erroneous impressions. If the note was void ah initio, any testimony that Ketcham had indemnified Yeomans, was useless and improper.
Judgment reversed.
