JUSTICES READE and DICK dissenting. There was evidence tending to show that the defendant Flemming, the principal in the note borrowed the money for which the single bill was given, to hire a substitute to put in his place as a soldier in the Confederate army, and that such purpose was communicated to the plaintiff at the time; there was also evidence, that for some cause, Flemming abandoned such purpose, or did not effect it, and offered to return the money to plaintiff, which he declined to receive, except some interest.
His Honor instructed the jury that if they believed that the plaintiff was informed by the defendant at the time of making said loan, that the defendant wanted the money to hire a substitute to put into the Confederate army, the contract was void, and the plaintiff could not recover, that in this aspect of the case it was immaterial whether in fact the money was so used or not. Under these instructions, a verdict was found for the *Page 525 defendants, and for alleged error in the change, after an unsuccessful effort for a venire de novo, he appealed. The cases of Critcher v. Holloway, 64 N.C. 526, and Kingsbury v.Gooch, Ib. 328, are binding authorities that one who lends money to another, knowing that his purpose is to hire a substitute for the Confederate army with it, does an illegal act, and a note taken upon such contract is void. This case however differs from those in this respect; here the defendant did not in fact apply the money to the illegal purpose; from some cause he did not put in a substitute, and offered to return the money to the plaintiff, who declined to receive it.
A majority of the Court think this makes no material distinction. It is true that in several cases the doctrine is stated generally, that where money is loaned for an illegal purpose, and it is actually so used, the contract is void, and the money cannot be recovered. But what is said of the actual use seems to be a mere obiter dictum, not necessary for the argument, and not applicable to the case in hand. We know of no case *Page 526 which holds that an actual illegal use must be proved in defence, and of no dictum directly to that effect. We are unable to see any reason why it should be so. If to lend money with the expectation (for knowledge as to a future event can only mean a strong expectation that it will take place,) that it will be applied to an illegal use, be of itself illegal, and vitiates the loan, which is the principle on which the above cited cases stand; we cannot see why the accident that it is not so applied should purge the illegality, and make that good which would otherwise be had. If indeed the lender before the time for the accomplishment of the illegal purpose, should himself repent and repudiate the contract, and prevent the illegal act, it might be different. Perhaps in such a case, although he might not be able to recover on the illegal note, he might recover the money loaned on an implied assumpsit. But that is not the case here.
Justices READE and DICK dissented.
PER CURIAM. Judgment affirmed. *Page 527