24 Miss. 9 | Miss. Ct. App. | 1852
delivered the opinion of the court.
Plaintiff in error sued the defendants upon a promissory note,executed by Craven and Wade, payable to Calvin Perkins, president of the board of police of Lowndes county, and his successors in office. The defendants relied upon want of consideration and illegality of consideration, as a defence. The facts are substantially these. The court-house in Lowndes county had become old and dilapidated, and the board of police had determined to build a new one. Certain citizens of Columbus petitioned the board to build the new court-house on a different lot in a different part of the town of Columbus from that on which the old one was situated, and proposed to make a donation to the county of a lot for that purpose. The lot proposed to be donated was very eligible for a court-house, more so than that upon which the old one was situated; and the board was inclined to accept the proposition, and to change the location. Craven and Wade, and certain other persons owning property near the old court-house, which would have been diminished in value by the removal of it to another part of the town, proposed to pay the county two thousand dollars towards the erection of the new building, if the board of police would build it on the site of the old court-house. This proposition the board accepted, and did build it on the same lot. The note sued on was given in consideration of this action of the board, and in part performance of the contract to pay them therefor. It is also admitted, that the property of the defendants would have been diminished in value if the court-house had not been so erected, and had been built on the other lot, to which it was proposed to remove it.
Was there a sufficient consideration for the note? Judge Story lays down the rule, that a sufficient consideration for a promissory note may consist “ either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility, act, or labor on the other side.” Story on Promissory Notes, § 186.
Does the consideration in this case come within the above definition ? It is admitted, that the removal of the court-house -from the old site to that proposed to be given to the county,
But, it is said, however true this principle of law may be generally, yet it is not applicable to this case, because the board of police had no power to change the site of the com’t-house, but were bound by law to erect the new court-house on the same lot where the old one had stood; and the various acts of the legislature providing for the establishment of a permanent seat of justice and the building of a court-house for Lowndes county, have been cited and commented upon, to sustain this position. We do not think they warrant the construction which counsel have placed upon them.
The constitution provides for the election, in every county, of five persons, “who shall constitute a board of police; a majority of whom may transact business; which body shall have full jurisdiction over roads, highways, ferries, and bridges, and all other matters of county police.” , Constitution, Art. 4, § 20. Under this clause in the constitution, and the acts of the legislature passed in pursuance of it, it has been held, that the board of police have power to build or repair court-houses; and the legislature, by the act of-1838, conferred upon them the power to -levy and collect special taxes sufficient to build or repair any court-house or jail, of other county building, for their counties respectively. Hutch. Code, art. 11, p. 703. Also, see Hutch. Code, 708-710; 10 S. & M. 243; 9. Ib. 77.
It is true, that this court held, in' the case of Monet v. Jones, 10 S. & M. 243, that the boards of police had no power to locate the seats of justice, and that the power to do so remained
This brings us to the consideration of the last point, which we deem it necessary to notice in this opinion. Was the consideration on which this promissory note was given, illegal? We do not think so. We recognize fully the doctrine of this court in the case of Merrell v. Legrand, 1 Howard, R. 150, that the consideration of a contract must not be merely of benefit to one party, or prejudice to the other; but that the benefit or prejudice must arise from a legal, and not an illegal or immoral
Judgment reversed; and cause remanded for further proceedings.