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 *256do it at all; for he cannot do it by himself; he is confined in a distant jail. I think, therefore, that he may do it by attorney.
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.