McKenty v. Gladwin, Hugg & Co.
Before: Burnett
Synopsis
It is too late to raise an objection in this Court, for the first time, that certain parties could not intervene in a suit pending in the District Court, when such objection was not made in the Court below.
If a party, by ante-dating a promissory note, and making it draw interest from date, secures to himself a certain sum of money, not justly due to him for any past or present consideration, he takes that much from the other creditors, and they are just as much injured as if that amount had been included as a part of the principal sum itself.
The Statute of Frauds makes every bond or other evidence of debt, given with intent to hinder, delay, or defraud creditors, void.
If a part of the sum, secured to be paid by the promissory note, whether principal or interest, is illegal, the note must defraud creditors, if enforced, and is, therefore, void, under the positive provisions of the statute.
Where a note is tftite-dated for the purpose of making it draw interest, for which there is no consideration, it is void as to creditors.
Burnett, J., delivered the opinion of the Court Terry, C. J., concurring.
The plaintiff commenced his suit by attachment, and seized certain goods and chattels of defendants. The intervenors also sued in attachment, and levied their writ upon the same goods; and then intervened, upon the ground that the claim of plaintiff was fraudulent as against creditors. The plaintiff had judgment in the Court below, and the intervenors appealed.
It is objected, by the learned counsel for the plaintiff, that Garrison and others could not intervene in this suit. But it is unnecessary to examine that question, as the objection was not raised in the Court below. The intervention was filed; and the plaintiff answered, simply denying the allegations contained therein. The parties went to trial upon the issues made, and it is now too late to object, for the first time, that the proper mode of proceeding was not adopted by the intervenors. The facts alleged, if true, entitle the intervenors to relief in some form; and if the plaintiff had any objection to the mere form of the proceeding, he should have made the objection at the proper time.
Having disposed of this objection, we come to the merits of the controversy. The note upon which plaintiff predicated his suit, was for the sum of $25,912 50; and was executed on the fifteenth or sixteenth of June, 1857, but ante-dated to the fourth of June, and drawing interest, from date, at the rate of two and. one-half j>er cent, per month until paid. The entire consideration for which the note was given, was composed of eight distinct items, three of which, amounting to about $12,000, were due July 3, 1857, and the other five were due June 19, 1857, and no portion of these items was drawing any interest. At the time the note was given, the plaintiff was expressly informed that the defendants were insolvent, and that other attachments would be issued in a few days.
The Court instructed the jury, in part, as follows :
“ Including the interest in the note did not destroy its validity, but it would be good to the extent of the money due thereon, for sales, and amounts paid by plaintiff upon his endorsements; if any part of the note was added to the amount due plaintiff, and included in it, with the intent of benefiting defendants, or hindering or delaying creditors, it would render the entire note void.”
In the case of Taaffe v. Josephson, (7 Cal. R., 352,) we had occasion to examine the questions arising in the present case. [229]
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