Meadow v. Bird

22 Ga. 246

• Court: Supreme Court of Georgia
• Decided: March 15, 1857
• Docket: No. 46
• Status: Published

Opinions

By the Court.

Lumpkin J.

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 evidence before the Court, that the services rendered were “to procure the pardon of a condemned criminal.” The defendant had omitted to introduce any testimony to that point

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, sound morality or the integrity of the domestic, civil or political institutions of the State: But to come closer to the point at bar. It has been decided, and we will not say incorrectly, that a contract to procure, or endeavor to procure, the passage of an Act of the Legislature, by any sinister means, or by even using apersonal influence with the members, would be void, as inconsistent with public policy and the integrity of a political institution: Nay", more: precedents are to be found, in which it is maintained, that any agreement for a contingent fee, to be paid upon the passage of a legislative Act, would be illegal and void ; because it would be a strong incentive to the exercise of personal and sinister influences to effect the object.

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, and that at his instance and request, such an Act was passed and approved, whereby defendant was released from all liability, &c., does not describe a contract for a contingent fee, nor one so clearly malum in se, that the Court can pronounce it void and reverse a judgement rendered upon it by default. And the conclusion of the Court was, that jealous as the law and its judicial organs should ever certainly be of such contracts as that they were considering, still there was, scarcely enough in the record to authorize the Court to decide, as a matter of law, that the note on which the judgment below was rendered, was given for an illegal or vicious consideration, and was therefore not legally obligatory.

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 impropriety, to prepare and present the petition before the Legislature, to make an exposition of the law and the facts, and to advocate the adoption of the measure; to be answered by the Attorney or Solicitor General of the Circuit where the trial was had; and in all private acts, to permit an appearance by attorney before the committees charged with the subject. To legalize such a system, would not only rid the Legislature of lobby agents and the swarms of hired retainers by which it is now surrounded; but would cause business to be conducted with more circumspection and candor; and not under those covert influences, so dangerous and detrimental, both to private rights and the public weal.

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 Legislature of this State saw nothing wrong in employing and paying liberally an agent to prosecute her claim upon the General Government. Why may not John Bird do likewise? Is money dearer than the life of a son ? And if it should be said, that if we give countenance and a legal sanction to this attempt, which is an entering wedge, it is impossible to foresee the train of evils of which it may be the prolific parent. Our reply is, sufficient unto the day is the evil thereof: Every case must stand upon its own merits; and pbove all, the Legislature, always having truth and justice before their eyes, is abundantly able to protect itself. It would not be decorous in this branch of the Government to impute to that body, either the want of ability or inclination to do so. The result of our investigation upon this branch of the case is, that the services rendered by Wright, as testified to by himself, and for which the note sued on was given, were not of such a character as to compel this Court as a matter of law, to declare the contract illegal and void.

[2.] John T. Meadow, plaintiff in the action, testified, that in the forepart of the year 1854/Wright, the payee of the note, was owing him between two hundred and fifty and three hundred dollars. That Wright was not able to pay him, and placed in his hands John Bird’s note for five hundred dollars, not then due. Witness took the note, and was to give Wright credit for the amount he owed him, and the balance pay over to Wright when collected.”

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 idea of the Judge was, that if Bird’s note was illegal in the hands of Wright, because contrary to public policy, then it was void in the hands of an innocent holder, who traded for it before due, and upon a valuable consideration. The Courts have not yet gone to this extent. And here, if the proof shows, as we are inclined to think it does, that Meadow took, not as collateral security, but in payment of a pre-existing debt, the residue or overplus to be turned over to Wright, when collected, we apprehend there would be no difference of opinion, that Meadow would be protected, notwithstanding the taint in the consideration.

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, for want or failure of consideration on the contract ? He might have taken other security, had he been apprised of any defect in the paper. Why is he not an innocent holder in legal contemplation ?

Judgment reversed.