Lead Opinion
By the Court.
delivering the opinion.
From the novelty of this case, in this State, I have looked a good deal into it, and am prepared to give my opinion respecting it. The facts are few and uncontradicted.
“I did render service for the same” (says Wright, who was made a witness by the defendant) “ with various persons whose names are not now recollected by me in particular. The service was such professional service as an attorney would render in explaining legal principles to those unacquainted with them. I did not influence any person that I know of, though I used all lawful means to do so, with various members of the last Georgia Legislature, by reading testimony and explaining and arguing its legal effects to them. I do not recollect what was the precise language used, but it was such as one gentleman might use to another in discussing the merits of a subject.”
Here then, is the consideration of the $500 note sued on, and given by John Bird to the witness, who was an attorney at law.
Upon this proof the Court charged the jury, “That it was against public policy for the Legislature to be influenced or controlled in acting on matters of public interest, by outside influence on the members, procured to be executed for hire; that if - the consideration of the note was for the services of the payee, in influencing or attempting to influence the members of the Legislature by personal solicitations or any such means, to vote for the pardon of a condemned criminal, it was absolutely void, and that it made no difference whether the person employed was an attorney or not.”
To which charge counsel for plaintiff excepted.
The Court is unanimous in holding that, the judgment below must be reversed, upon the ground, that there was no
But supply this deficiency, for such no doubt was the fact, and what is the law of the case ?
We are not the advocates or even the apologists of the evil intended to be rebutted by the instructions given by the Circuit Judge to the jury. We concede the fact, that there is too much reason to believe that legislation in this country has in some instances, been contaminated by sinister and selfish influences. I do not speak of this St ate, for I know of no such instance. But I am fully warranted in coming to this conclusion, in view of the painful exposures recently made in our national Congress; already has a class of persons been established at Washington City, and elsewhere, who make it a business to push through private claims and private acts per fas et nefas. How easy the transition from the compensation of agents, to the pay of members, late developments abundantly prove. The consequence is, a wide spread and growing suspicion of want of public morality in that branch of the government, without which the national fabric would crumble to ruins. No man sees more clearly or feels more strongly, the necessity and importance of preserving pure the fountain from which issues, not only all of our general laws, but, the innumerable private acts for railroad and banking corporations, pecuniary aid to associated enterprises, which grow with our rapid growth, and multiply with our rapidly increasing wealth and population. Still the question recurs, is this contract illegal and void ?
It is admitted that it is untrammeled by authoritative decisions, and must he determined upon general principles.
It will be found upon examination, not only that the books are full of cases to this effect, namely: That the law will not aid in enforcing any contract that is illegal, or the consideration of which is inconsistent with public policy,
Beyond this, the reported cases do not go; and noné of the doctrines thus announced, embrace the case under consideration.
Wood vs. McCann, 6. Dana’s Kentucky Reports 366, is cited not only by Chitty on Contracts, as a leading case in support of the doctrine, that contracts contrary to public policy are void; but it is referred to by most of the American Courts with approbation, who have had this doctrine under consideration, and was mainly relied on in the argument before us. Perhaps a stronger cannot be found.
There, as everywhere, the Court admitted the patent fact, that it was all important to just and wise legislation, and therefore to the most essential interest of the public, that the Legislature should be perfectly free from any extraneous influence, which may either deceive or corrupt the members or any one of them; an influence exerted too, not from public or patriotic motives, but from those which are altogether mercenary and seliish; and yet the Court held — though doubtinglyit is true — that a declaration, averring in substance, that the defendant bound himself to pay to the plaintiff $100 to attend the Kentucky Legislature, to get a bill passed legalizing the defendant’s last marriage, and divorcing him from his former wife; and averring also, that the plaintiff did attend,
Compare the facts in the case before us with this, and the contrast is striking. The services rendered by Wright and the influence used by him, was as an attorney at law, for a fee certain, in “explaining” to the lay members of the Legislature, “legal principles; and in explaining the testimony and arguing its legal effect to them;” and this in language “ which one gentleman would use to another in discussing the merits of a subject.”
This is the precise case made by the record. And it is obvious, whatever the further and future proof may be, that it is not a contract as it now stands upon Wright’s testimony, to procure or endeavor to procure the pardon of a condemned convict, by any sinister means, or even by using a personal influence with the members; nor is the consideration contingent or dependent upon success.
Direct authority might be adduced from England in support of this contract. But I forbear, upon the ground, that learned Judges in this country have held, that it is unsafe to rely on a precedent coming from such a source, when we reflect upon the different manner of conducting business there and here. I need not specify them.
I know how economical the Legislature is of its time, still I am not prepared to say, that it would not be wise, in applications for a pardon, to allow feed counsel, without impro
In the absence of any such provision, I cannot divest myself of the idea, that the services rendered in just such a case as this, should not go uncompensated. Suppose the maker of this note to be an aged and ignorant man. His son has been consigned to the gibbet by the Courts. His hope for life is in the pardoning power of the Legislature. It may be that evidence vital to the convict’s case has been discovered since even the decision by the appellate Court; or some other thing occurred, which, in a civil case, would induce a Court of Chancery to interfere and grant relief against a judgment at law. It is important that the case in its new phase should be properly presented to the Legislature. Were the prisoner the son or brother or relative of a lawyer, who, with all his zeal for legislative purity, would say, that it would be contrary to sound morality or public policy, for this professional friend to aid and abet, to the extent that Wright did, in procuring the pardon of this kinsman ? If there be such a man amongst us, he belongs to that age, when Brutus could sentence the child of his loins to the lictor’s axe, and not to this, when justice is tempered with mercy. And if this would not be condemned, why may not this illiterate old man employ another to do that which he cannot have done otherwise, which he is unable to do himself, and which is in and of itself untainted with turpitude ? The Legisla
The Court upon this evidence charged the jury, “that if Bird’s note was given upon the consideration above stated, it was void in the hands of Meadow, although he may have received it bona fide before due for a valuable consideration, or as collateral security, and without notice of the illegal -consideration for which it was given.”
To Which plaintiff, by his counsel, excepted.
That the charge upon this branch of the case was erroneous in one view of it, and, that too, in the sense in wich the Judge intended it to be understood, we cannot doubt The
But, admitting that it was received and held by Meadow as collateral security only, can he be affected by the alleged-vice in the original consideration ?
In Gibson el al. vs. Conner, 3 Ga. Rep., 47, this Court held that a note in the hands of a holder, for a valuable consideration, transferred before due, and without notice of any equities between the maker and the payee, as collateral security for an existing debt, is not liable to the equities between the maker and the payee. In other words, we put an absolute transfer, and a transfer by way of pledge, upon the same footing, so far as the rights of the holder are concerned.
We are aware that much authority can be found to the contrary of this doctrine, especially in this country. At a more convenient season, we may, if opportunity occur, give a more thorough examination to this question. At present we shall content ourselves to rest upon the decision, as this opinion is spreading out to a most alarming length. We shall content ourselves to dismiss this point with a single remark, seeing that we deem the note valid even in the hands of the payee, and it is this : to the extent of the creditor’s interest in the collateral security, we can see no good reason why he should not be protected for the same reasons than an absolute holder would be. Why should he be put upon inquiry, as to the consideration of a note not due ? And does he ntit suffer to the extent of his lien, as much as the holder,
Judgment reversed.
Concurrence Opinion
concurring.
The General Assembly have power to pardon convicts of murder or treason. Art. 2, Sec. 7, Cons, of Ga.
It would seem to follow, that such convicts have the right to apply to the General Assembly for a pardon. Such a right, if it exists, must of course, include the right to support the application, by a presentation of their case, in its law, and in its facts, to the General Assembly.
. But how can convicts exercise this right, except by approaching the General Assembly through individual members of it ? There is no mode provided by which they may appear before the General Assembly in its collective capacity. To say, therefore, that they are not to appear before the individual members of it, is to say what might amount, practically, to a denial to them of all right of applying for pardon, with the inclusive right of supporting the application by a presentation of the law and the facts of their case. How else can"the pardon-seeking convict open his business, except with individual members of the General Assembly ? Who but a member can ever present his application to the General Assembly ?
I think therefore, that a convict of miirder may lawfully lay his application for pardon before each member of the General Assembly; and may, in support of the application, present each member with the facts and the law of his case.
But if it is lawful for the convict to do this by himself, why is it not lawful for him to do it by attorney ? To say that he shall not do it by attorney, is to say that he shall not
If he may do it by attorney, then the services of the attorney by whom he does it, may constitute a legal ^consideration for a promise on his part to pay money to the attorney, Lampleigh vs. Brathwait, 1, Smith’s Lead. Cases 67. Formby vs. Pryor, 15 Ga., 258.
But the first of the two charges of the Court below, interpreted by the facts in evidence, said, in effect to the jury, that such services of the attorney could not be a legal consideration for such promise of the convict. That charge was therefore, I think, erroneous.
Grant, however, that the Court was right, and therefore, that such promise was void, still I say, that it could not have been void absolutely; but could have been void only as between the promisor and the promissee, and the assignees, with notice, of the latter.
“ But, unless it has been so expressly declared by the Legislature, illegality of consideration will be no defence in an action at the suit of a bona fide holder, without notice of the illegality, unless he obtained the bill after it became due.” Chitty on Bills, 116. This position is, I think, well supported by authority.
Meadow was a bona fide holder, without notice of the illegality of the consideration, if the consideration was illegal. He obtained the notejfrom Wright, the payee in it, by giving up to Wright a debt which he held on him. He took the note in payment of that debt — not as security for the payment of the debt.
The note, therefore, in Meadow’s hands, must have been valid, at least to an amount equal to the amount of the note given up to Wright. But, according to the second of the two charges of the Court, the note was wholly void.
I think, therefore, that this charge also, was erroneous.
Dissenting Opinion
dissenting.
There are two points in this case, upon which I have the misfortune to disagree with the Court The first is, whether the illegality of the consideration of the note sued on, can be set irp against this plaintiff; and-secondly, if it can be set up against him, was it illegal for the payee to contract with the maker of the note, to render him professional services, by attempting to use influence with members of the Georgia Legislature, by reading testimony and explaining and arguing its legal effects to them. The .-majority of the Court sustain the negative of both of these propositions. I hold the affirmative of both to be the law.
It appears from the evidence that the note was payable to G. J. Wright, or bearer, and that he was indebted to the plaintiff in the sum of two hundred and fifty, or three hundred dollars, and he placed in his hands the note sued on, it being a note on John Bird, for five hundred dollars ; and he was to give Wright credit for the amount he owed him, and the balance to pay over to Wright when collected. Wright retained an interest of nearly one half, if not quite, in the note. To that extent it was his own. The other part of the note he transfered to plaintiff who was to give him credit when it was collected. He did not give up the claims on G. J. Wright, nor did he credit the claims with any amount on account of the note. To the extent, then, of his demand on Wright, he received the note as collateral security. Nothing more. Under this statement is the plaintiff such a holder of the note, for a valuable consideration, in the usual course of trade, as to preclude the defence sought to be set up ? He is the holder of the note; It was transferred to him by the payee, ancl being payable to bearer, the mere delivery of the note to him for the consideration stated in the evidence was a sufficient transfer of the property in the note ' to authorize him to sue upon it. But the mere right to sue - s not conclusive of the question. A plaintiff to whom a
In the case of Gibson et al. vs. Conner, the learned Judge, who pronounced the judgment of the Court so ably, says that he considers the principle involved there as having been set. tied by this Court in the case of Bond against the Central Bank and the whole Court thought that, whether the plaintiff received the note in payment of, or as collateral security for, a pre-existing debt, he was not liable to the equities between he original parties, unless he received it after maturity or with notice of these equities. I regret that I cannot concur n the judgment rendered in .that case, and it is with great diffidence, that I venture to differ from gentlemen of so much
I think that when the cases are examined, there will be found a great distinction in principle, the reason of the case, and the authorities,between the rights of the maker to defend or to be let into equitable defences against a party who received a note by transfer before due, without notice of equities between the maker and the payee, in payment and extinguishment of a pre-existing debt, which the creditor gives uj) or cancels at the time, and one who holds it as collateral security of a debt against the payee, the evidence of which he retains. The question in the case of Bond against the Central Bank of Georgia was whether the bank which received the note sued on in payment of a pre-existing debt, before due, without notice of equities between any of the parties to it, was a bona fide holder, so as to exclude the equities claimed as subsisting between the original parties to the note as a defence. It was a long time a matter of contest in the Courts, whether a note taken in payment of a debt due, which ivas extinguishe /, and the evidence of it, as a promissory note, was surrendered to the party, was a note taken in the usual course of business. It was seriously contended that it was not, but it is well settled now, that when a note is taken in payment of a 'pre-existing debt, or of a debt contracted at the time, and that debt is extinguished thereby, so that no action can be supported for the recovery of it, on the failure of the party receiving the note in payment to collect it, the note is taken in the usual course of business, and the matters are settled, and at an end, so far as the parties to the transaction are concerned. In the case of Bond vs. the Central Bank, this principle was acted on and enforced. The bank retained no claim on Beall, it had settled and surrendered his note, extinguished his debt, and it could not have had, on any
Jernigan, Lawrence & Co., transferred the note sued on as collateral security only, to Stewart & Fountain. The latter, notwithstanding the transfer, held on to the note or other evidence of debt, which they held against Jernigan, Lawrence & Co. If they had lost by the insolvency of the maker, or by defences, the entire amount of the note sued on, they would have been in no worse condition than when they received the note. The transfer of the note by Stewart & Fountain to Henry W. Conner, was a collateral security also, and like Stewart & Fountain, he would not have been placed in a worse condition than he was when he received it, if he had been defeated in his suit, for he retained the liability which he took it to secure. In all such cases, the creditor takes the security for what it is worth, and no more. If he fails to collect it, he still holds on to his original debt. He assumes the position of his debtor in relation to the maker of the note. Any other rule would seem to be extremely unjust and oppressive to the maker, who might have a just and sufficient defence against the payment in the hands of the payee. The rule does not embarrass commerce in the slightest degree. The creditor knows, when he receives negotiable securities as collaterals, the terms on which he receives them, and he should inform himself by suitable enquiry, of their availableness in his hands, before he incurs expense in efforts to collect them. The case of Swift vs. Tyson 16 Peters, 1, is a very high authority as a decision on the point before the Court in which it was decided ; but that point is not the one presented in the record before us, nor in the case of Gibson vs. Conner, and the only part of the judgment of the Court pronounced by Justice Story, and which is insisted on as applicable to this case was a mere obiter dictum of the Court, for it was not necessary to the decision of the case.
The bill of exchange had been accepted and the accep -
There was no division of opinion in the Court on the point made in the argument and insisted on, as within one of the exceptions to the charge of the Court to the jury brought up in the record before us, to wit: that the charge was not justified by the facts in the proof in this, that the proof did not warrant the Court to say to the jury, that if the consideration of said note was for the services of the payee, in influencing or attempting to influence the members of the Legislature by personal solicitation, or any such means, to vote for the pardon of a condemned criminal, it was absolutely void, and that it made no difference whether the person employed was an attorney or not The objection was that there was no evidence that the note was to be given on the pardon of a condemned criminal. The testimony is, that the note was given in Milledgeville, and that the payee rendered services lor it, with various persons ; the service was such professional service as an attorney would render in explaining legal principles to those unacquainted with them; the payee did not influence any person that he knew of, though he used all lawful means to do so with various members of the Georgia Legislature, by reading testimony and explaining and arguing its legal effects to them. Such was the consideration for which the note was given. It was for
A certified copy of this evidence is required by statute to accompany all applications for pardon. By the Constitution, the Legislature has the power to grant pardons for treason and murder, and for no other offences against the criminal laws. The Court had a right to charge upon the issue before the jury with reference to the facts and the law, expressing or intimating no opinion, however, as to what has or has not been proved, or as to the guilt of the accused. Assuming then, that the Court’s charge to the jury was justified by the proofs before it, I shall not consider whether it was right in point of law. It is insisted that the influencing or attempting to influence, for a consideration, members of the Legislature to vote for the pardon of a condemned criminal, is not illegal, and that a note given for such service is not void between the original parties, or if the note be transferred, it is not void, on that account, in the hands of a holder, under whatever circumstances he may hold it. I am of opinion that a note given for such a consideration is void. I think it is void because it is against public policy.
The payee of the note sued on, says that he does not recollect the precise language used by him in his intercourse with the members, but it was such as one gentleman would irse to another in discussing the merits of a subject. Unquestionably it was, for he would not have approached a member in any other manner, and the greater the injury to the public interest, for had he said to him, I am employed to obtain a pardon in this case, it will be much to my interests if you will vote for it, and proceed to read and explain the evidence, and argue the case, it would be so open an attempt to cause him to swerve from his duty, as to amount to an insult. The payee of the note says he read and explained the evidence, and argued its legal effects to members. His services were such as an attorney would render in explaining legal principles to those unacquainted with them.
How would an attorney explain legal principles, as an attorney in a cause ? In such a manner, of course, as suits the side of the cause he is advocating. He does not argue them before the Legislature, where there are many lawyers, but to members unacquainted with legal principles, outside of the Legislature. He treats the Legislators as triors of the case again, but does not appear before the body, but plies the judges and jurors separately with his explanations and arguments. It is said that the applicant had the right to be represented by attorney. A condemned criminal has no such right. When on his trial, he enjoyed the great constitutional privilege of being heard - by himself or his counsel, or both-
It is said that a citizen may take a fee to procure legislation on any subject, and in support of private claims. I concede it with this explanation. If either house of the Legislature agree to hear evidence and argument in support of a private claim, or any proposed measure, before the house or a committee of the house, I have no doubt that public policy is not in the slightest degree infringed, by the employment of counsel to present and explain the claim or other matter before the house or committee. But it is otherwise, if the parties choose to employ counsel to approach individual members with arguments privately. The same arguments, if made publicly, other members might answer and refute. I might point to the circumstances attending the passage of the Ya-zoo Act, to show how dangerous to the public interests mercenary lobby members are, and how necessary it is to keep the fountain of the law pure, and to allow no hands to dabble therein, except those who carry with them the authority of the people.
In that case, the Governor allowed no evidence of the innocence of the party, but the evidence was consistent with the guilt of the convict, but went to establish facts and circumstances to bring the case within the legitimate purposes of the pardoning power. Here it does not appear that there was any evidence but that given on the trial, and communicated under the statute, with the application for the pardon, and it is clearly inferable, from the evidence, that the effort to influence members to vote for the pardon, was to prove that the convicted person was not guilty; a position that the pardoning power ought not to allow, and a fact that it should not permit to be controverted. There the evidence and argument, if any, was before the pardoning power, the whole power being in the Governor, here it was not to the body having the power of pardon, but to individual constituent members of that body, separate and apart, or at least, not assembled as an organized body;•’’there the evidence .was read and expounded. When I say the guilt of the party is a fact that the pardoning power should not allow to be controverted, I do not mean that it is a matter on which they should not exercise their own judgment from the evidence before them, for it might happen