would procure his creditors to accept a composition. The defendant became surety for I. S. in a joint promissory note; and the transaction was to be kept a secret from the other creditors. The plaintiff endeavoured to obtain a composition, but failed; and it was held, that he could not recover as against the defendant on the note, as the transaction was fraudulent, and void in its inception (k). A gratuitous payment, or additional security to a particular creditor, after he had signed the deed, would not be a fraud on the other creditors, if it were not done in pursuance of a prior agreement between the parties to induce the creditor to accede to the general arrangement (1). It has, however, been held in bankruptcy, that if a bankrupt enter into a composition deed, by which the creditors release him from his debts, a promissory note subsequently given to a creditor for the remainder of his debt is nudum pactum, and consequently a bad petitioning creditor's debt (m). It is the chief principle of the insolvent debtors' acts, that the property of the debtor shall be divided rateably amongst his creditors. Any agreement, therefore, between the insolvent and one of his creditors to secure to the latter a preference and superior claim on the future effects of the debtor, in consideration of the creditor withdrawing his opposition to his discharge, is void, as a fraud on the other claimants (n). And an agreement between an insolvent debtor and his assignee, by which an estate of the insolvent was to be held in trust by the assignee to pay out of the rents and profits annuities to the insolvent and his wife, and the surplus towards the extinction of a debt owing to the assignee, is a transaction which, being brought before a court of equity at the instance of the insolvent himself, was rescinded (k) Wells v. Girling, 4 Moore, 78; 1 Bro. & Bing. 447, S. C. And see Alsager v. Spalding, Scott, 204; 4 Bing. N. C. 407, S. C. (1) See Knight v. Hunt, 5 Bing. 432; 3 M. & P. 18, per Best, C. J., and Park, J. As to a new promise or bond, see Took v. Tuck, 12 Moore, 435; 4 Bing. 224; 9 B. & C. 437, S. C.; Er parte Hall, 1 Deacon, 171. As to recovering back money paid to induce a creditor to sign a composition deed, see ante, 635; Smith v. Cuff, 6 M. & Sel. 160. (m) Ex parte Hall, 1 Deacon, 171. (n) Jackson v. Davison, 4 B. & Al. 691; Rogers v. Kingston, 10 Moore, 97; 2 Bing. 441, S. C. In Murray v. Reeves, 8 B. & C. 421, an agreement in consideration of withdrawing an opposition which had been commenced by a creditor to the discharge of an insolvent, was held to be void, as contravening the policy of the insolvent act. As to when a composition deed is void as a fraudulent preference under insolvent act, ante, 414, note (c). on the ground of fraud on the creditors, and on principles of public policy (o). So an agreement to omit the debt of a particular creditor from an insolvent's schedule is a fraud on the Insolvent Court and on the other creditors (p). A contract with a bankrupt to pay him a sum of money, if he would induce his assignees to sell part of the property of the bankrupt to the person who was to make such payment for a given sum, is a fraud on the creditors, and void (q). Fraud on parties collaterally interested in a contract.-We have already fully considered the instances in which a surety or guarantee of a demand may be discharged from responsibility by any secret dealing between the principal and the debtor, in violation of the express or implied contract of the surety (r). If A. agree to give B. a certain sum for goods, in advancement of C., any secret agreement between B. and C. that the latter shall pay a further sum, is void as a fraud on A., although the bill of sale is made to A.; and B. cannot recover such further sum against C. (s). It is reported to have been held by Lord Ellenborough, that a secret agreement to allow a poundage to a person for recommending a third person to buy goods of the person who was to pay the brokerage, is void, as a fraud on the third person (t). But in a subsequent case his lordship is reported to have expressed an opinion, that an agreement to pay the plaintiff a per-centage for introducing the defendant, a medical man, to a partnership with a medical practitioner, upon a premium being paid to the latter, is not invalid (u). It seems that if A. be induced to pay to B. a composition on the debt due to him from C., and B. agree to take the money in full of his claim, he cannot afterwards sue either C. or a person who (0) M'Neill v. Cahill, 2 Bligh, 229, in the House of Lords on an appeal from the Court of Chancery in Ireland. As to contracts in violation of the policy of the bankrupt and insolvent acts, see further ante, 670. (p) Tabram v. Freeman, 4 B. & Ad. 887; 2 C. & M. 451; ante, 203; see a form of plea and replication, Stracy v. Blake, i M. & W. 168. (q) M'Shane v. Gill, 1 C. & P. 149. (r) Ante, 527, 528, and Stone v. Compton, cited there. (s) Jackson v. Duchaire, 3 T. R. 551. (t) Wyburd v. Stanton, 4 Esp. R. 179. Semble, that the fraud consists in withholding from the third party the knowledge that the party with whom he contracted had to pay the brokerage, and in the inducement which the latter thus has to charge a larger price in order to repay himself the poundage. (u) Edgar v. Blick, 1 Stark. R. 464. An agreement to sell a business or goodwill, and recommend customers, is good; see Bunn v. Guy, 4 East, 190; Bryson v. Whitehead, 1 Sim. & S. 74; 2 Chitty Pl. 6th ed. 35. was before surety for him, unless A. assented to the surety remaining liable (x). Puffers at an auction.-The employment of puffers, or sham bidders, at an auction, not for the defensive purpose of protection against a sale at an under value, but to extort a high price, by taking an advantage of the eagerness of the bidders, will sometimes invalidate the sale on the ground of fraud (y). Sale when fraudulent as to third persons.-The effect of fraud on the sale or warranty of goods has already been considered (z). And we have seen that if a man sell goods, and still continue in possession as visible owner thereof, such sale may be fraudulent and void as against creditors, so that the goods may be taken in execution by them (a). An agreement in consideration of the sale or relinquishment of an office, although it may not fall within the enactments of the statutes on the subject (b), is void on the ground of fraud, if it be made without the knowledge or sanction of the officer or establishment having the right of appointment to such office (c). And where A., who held an office for life, in the gift of B., agreed with C. to resign, and to procure the appointment for him, and C., in consideration thereof, agreed that A. should have a moiety of the profits; and A., having resigned, procured the appointment of C.; it was held, that such agreement, not having been communicated to B., was a fraud on him (d). (x) Lewis v. Jones, 4 B. & C. 506, 512; 6 D. & R. 56, 57, S. C. (y) See ante, 298; puffers at the sale of a horse by auction, Crowder v. Austin, 2 C. & P. 208; 3 Bing. 368; 11 Moore, 283, S. C. (z) Ante, 406, 447. (a) Ante, 409. (b) Post, sect. 2, div. 6, p. 720. (c) Parsons v. Thompson, 1 H. Bla. 322, 327; Harrington v. Du Chatel, 1 Bro. C. C. 124; Bluchford v. Preston, 8 T. R. 89. (d) Waldo v. Martin, 4 B. & C. 319; 6 D. & R. 364, S. C. If any part of the entire consideration for a promise, or any part of an entire promise not in its nature capable of separation, be illegal, either at common law or by statute, the whole agreement is void (e). Where a contract contains an independent stipulation, void at common law (as a general restriction of trade (ƒ)), not affecting or forming part of the entire consideration or promise; here the invalid stipulation may be rejected, and the remainder of the contract shall stand. So where the condition of a bond consists of several distinct parts, some lawful, others not so; it is good for so much as is lawful, and void for the rest (g). A distinction has been taken in the books between a deed or condition void in part by statute, and the case of such an instrument being in part void at common law. "A statute," it has been said (h), " is like a tyrant-where he comes he makes all void; but the common law is like a nursing father-it makes only void that part where the fault is, and preserves the rest." And it has been laid down that if part of a deed or condition be contrary to a statute, the remainder (even, it seems to have been considered, though it be distinct,) shall also be void (h). But (e) Featherstone v. Hutchinson, Cro. Eliz. 199; Bridge v. Cage, Cro. Jac. 103; Morris v. Chapman, Sir T. Jones, 24; Scott v. Gillmore, 3 Taunt. 226; per Tindal, C. J., and Bosanquet, J., in Waite v. Jones, 1 Bing. N. C. 662, 664; 1 Scott, 730; affirmed in error, Jones v. Waite, 7 Scott, 317; 5 Bing. N. C. 341; ante, 170; per Tindal, Č. J., in Shackell v. Rosier, 2 Bing. N. C. 646; 3 Scott, 74, 75; Vin. Ab. Ac tion, Assumpsit. Of partial weakness 483. (g) 1 Saund. 66 a, note (1); infra, note (h). (h) Maleverer v. Redshaw, 1 Mod. S5, 36; Norton v. Simmes, Hob. 14; Mosdel v. Middleton, 1 Ventr. 237; this distinction cannot be supported; and a contract is void in toto if a part of it is illegal, either by virtue of a statute or at common law (i). There are, however, instances in which the invalidity of part of a deed, even by virtue of a statute, has been held not to destroy the whole; and the remainder, being legal and distinct, and capable of separation from the illegal provision, has been allowed to stand, there being no express words in the act to render the whole void. Thus, the Mortmain Act, 9 Geo. II. c. 36 (k), makes void all gifts or grants, &c., to charitable uses; yet where a deed contained several limitations, one of which was void, as being to a charitable use, the court held that the statute did not vitiate the other limitations, although included in the same deed (1). And it was decided upon the property tax acts, that a provision (in violation thereof) in a deed, that the tax should not be allowed or deducted from payments to be made, did not affect the validity of the rest of the instrument (m). And although a bill of sale for transferring the property in a ship by way of mortgage may be void as such, for want of reciting the certificate of registry, as required by the 26 Geo. III. c. 60, s. 17 (n), yet the mortgagor may be sued upon his personal covenant contained in the same instrument, for the repayment of the money lent (o). And the grant of a rent charge on a benefice may be void as regards the charge; yet a personal covenant, even in the same deed of grant, to pay the rent, is not therefore invalid (p). It is also a rule of per Lawrence, J., Morgan v. Horseman, 3 Taunt. 244, 245; 1 Saund. 66 a, n. (1); per Wilmot, C. J., Collins v. Blantern, 2 Wils. 351; per Lord Ellenborough, C. J., Newman v. Newman, 4 M. & Sel. 70. And see per Gibbs, C. J., Doe v. Pitcher, 6 Taunt. 369; Greenwood v. Bishop of London, 5 Taunt. 746, per Gibbs, C. J. (i) Shackell v. Rosier, 3 Scott, 59, 74; 2 Bing. N. C. 646, S. C.; Waite V. Jones, and Jones v. Waite, ante, 693, note (e). (k) Construction of this act, Doe v. Hawthorn, 2 B. & Al. 96; see also Chit. Stat. and Chitty & Hulme's Stats. tit. Charitable Uses. Copyholds within it, Doe v. Waterton, 3 B. & Al. 149. (1) Doe d. Thompson v. Pitcher, & Taunt. 359; 2 Marshall, 61. (m) See Redshaw v. Balders, 4 Taunt. 57, 105, 113, 553; Howe v. Synge, 15 East, 440; vide 1 Wms. Saund. 66 a, note (d). (n) See the present ships' registry acts, Chit. & Hulme's Stats. tit. Ships, 3 & 4 Will. 4, c. 55. (0) Kerrison v. Cole, 8 East, 231; cited and recognized by Tindal, C. J., in Ferguson v. Norman, 5 Bing. N. C. 86; 6 Scott, 794, S. C.; vide Biddell v. Leeder, 1 B. & C. 327; 2 D. & R. 499, S. C.; Mortimer v. Fleeming, 4 B. & C. 120; 6 D. & R. 176, S. C. (p) Mouys v. Leake, 8 T. R. 411; recognized by Tindal, C. J., in Ferguson v. Norman, ubi supra; Kerrison v. Cole, 8 East, 231; Gibbons v. Hooper, 2 B, & Ad. 734; see also |