Taaffe v. Josephson

Burnett, J., after stating the facts, as above, delivered the opinion of the Court—Murray, C. J., concurring.

If any part of the entire consideration of a contract is illegal, the whole contract is void. Chitty on Contracts, 371, and authorities referred to in note 1. So, if an entire judgment be composed of several elements, and one or more of them is illegal, the whole judgment is void, as against creditors. 12 Pick., 388, Fairfield v. Baldwin; 22 Pick., 545, Kendall v. Lawrence; 3 Metcalf, 49, Pierce u. Partridge; 4 Wend., 100, Wilder u. Fondey.

There would seem to be no question as to the justness of this position. In the case of Fairfield v. Baldwin, above referred to, it was insisted that the attachment was good, at least in part. In answer to this, the Court said : 1

“ The argument amounts to this, that a man having a just claim to a small sum, who should fraudulently bring forward claims to a much larger amount not due, and who should be detected, should be put in as good a condition, at least, as if he had not mixed the good and the bad together, and consolidated the whole into a judgment. We think the law is directly the reverse, and the fraud corrupts and destroys the whole.”

If these views be correct, the judgment of Samuel «. Josephson must stand or fall, as a whole. And it must also be clear, that if there was an actual intent to defraud other creditors, existing in the mind of Samuel, at the time he issued his attachment, that the judgment would be void. The only question then to determine is, whether the fact of knowingly taking a judgment for more than was due at the commencement of the suit, is, in itself, in contemplation of law, conclusive evidence of fraud.

It was held by this Court, in the late case of Alvarez u. Bran-nan, that fraud may be committed, when there is no fraudulent intention actually existing in the mind of the party at the time the act was done. In other words, the law irresistibly draws the conclusion of fraud from certain established facts, without any further inquiry into the real motives of the party. In the present case, the defendant, Samuel, knew the fact, that the note was not due; and, knowing this fact, he commenced his suit before it was due, and took his judgment for the full amount. And when I say he knew that the note was not due, I mean to say that the law draws this inference from the facts proved. He is presumed to know the law, and whether he did or not, the law holds him equally responsible; and knowing the law, he was bound to know the contents of the note, and that it was not due until after the suit was commenced. And whether any fraud [356]