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 *258note is transferred after due or with notice of defences, has a property in it and he may sue upon it, but that does not preclude the maker’s right to put up the same defences against the note when sued by him, that he would have had a right to plead, had the action been in the name of the payee. If the transfer be void, then the transferee has no property in the note, and can not sue, whatever the consideration of the note may have been, and however unimpeachable it might be in the hands of the original payee, or a holder, bo na fide, and for a valuable consideration. No case like this has been before this Court, and therefore, the precise case has never been adjudged by it, but I admit that the only difference between this case and Gibson et al. vs. Conner 3 Kelly, 47, is, that, in that case, there was an implied trust, to refund to the debtor any balance that might remain after paying the debt, which the note was transferred to secure; while in this case, there was an express agreement to that effect, That case decides, 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.” That case is the one before us, with the exception stated. The plaintiff has an interest oftbetween two hundred and fifty and three hundred dollars in the note ; the balance belongs to the payee.
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 *259ability as those who presided in that case, supported as they are by the profound legal learning of my brother, who presides with one of them and myself in this case. I must assign my reasons :
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 *260contingency, a right of action against him. The case of Gibson et al vs. Conner, is widely different.
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 - *261tance was indorsed to the plaintiff, before it became due, without notice of anything in the transaction between the parties to the acceptance which would impeach its consideration. It was taken in payment of a promissory note due to him by parties, of whom the payee was one. On the transfer of the acceptance to the plaintiff, he gave up the note in payment of which he received it. For this latter statement, see facts presented by plaintiff’s counsel at page four, and the protest of Judge Catron, in which he says he was “unwilling to sanction the introduction into the opinion of the Court, a doctrine, aside from the case made by the record, or argued by counsel, assuming to maintain, that a negotiable note or bill, pledged as collateral security for a previous debt, is taken by the creditor in the due course of trade; and that he stands on the footing of him who purchases in the market for money, or takes the instrument in extingirishment of a previous debt.” There is nothing in the record in that case to show that the acceptance was received by the plaintiff as security for a pre-existing debt, and yet, Judge Story, in speaking of a negotiable instrument generally, remarks, that the Court “ are prepared to say, that receiving it in payment of, or as security for a pre-existing debt, is according to the known and usual course of trade and business.” If Judge Story had omitted from his opinion, the expression “or as security for a pre-existing debt,” and the arguments used by him to support it, the opinion pronounced by him would have been warranted by the record before him, and in accordance with adjudicated cases, and in authoritative judgment of that- Court, and entitled to the highest respect in all judicial tribunals not bound by its decision. But an obiter dictum cannot be regarded as authority any where. The cases on this point have been most ably reviewed by Chancellor Walworth in the case-of Stalker vs. McDonald, 6 Hills Rep., where he sustains fully the right of the maker of a negotiable instrument, transferred to a creditor as collateral security, to go into all defences in a suit by him, that he could have made against *262the payee had he been the plaintiff. If Bird should be compelled to pay the debt sued for in this case, to the present plaintiff, (if his defence would be good against the payee were he the plaintiff,) he will be subjected to great inconvenience, expense and probably to eventual loss to the extent of the note sued on, while, if he were allowed to make the defence, and that defence should be sustained, the plaintiff would be only «remitted to the position he occupied before he received the •note. He has not given up or extinguished the debt of Wright. I think, therefore, that according to the law, reason ■and justice of the case, he ought to be allowed to go into his defence, that the plaintiff holds the note under circumstances which admit the defence.
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 *263influencing or attempting to influence members of the Legislature ; that influence was exerted, by reading testimony and explaining and arguing its legal effects to them. It was then, clearly inferable from this evidence that there was some matter or thing before the Legislature on which it had to pass. It was a matter in which evidence of some sort and for some purpose was before the members. It was not 'usual for the General Assembly to call for evidence to enlighten them in reference to matters connected with their ordinary duties of Legislation. It is sometimes done in special cases. But the law requires that the judges, on the trial of persons for capital offences, and for offences, the punishment of which is conflnement in the penitentiary for one or more years, to take or cause to be taken down in writing, a memorandum of the testimony of all witnesses, who testify on the trial, and on conviction of the party arrested, the evidence given on the trial is to he recorded.
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.
*264If our laws are wise and necessary to the public safety, they ought to be executed. They are to be presumed to be wise and necessary, as long as they are on the statute book. If they are unwise and unnecessary, they ought to be repealed. If a man violate a public law, as the law against murder, and is prosecuted for it, and is found guilty by the jury, and after exhausting all legal means of escape from the verdict of the jury, or acquiescing in its justice, receives the sentence of the law, and applies to the competent authority for a pardon, the question with those who have the power of pardon should be, whether there is any thing in the circumstances of his case, which should make the law against murder a nullity, as to him. When convicted by a jury, he is guilty, and he must remain so, unless judgment be arrested, or a new trial be granted to him. When he receives the sentence of the law, his rights, as to defence against the accusation and to exemption from punishment, cease. His guilt is a verity, and his punishment follows. Those with whom the people have entrusted the power of pardon, may remit his punishment and let him go. If they do this, it is not in consequence of any right which remains in the convict. It is the work of mercy. It is the pardon of a guilty man. Those whose high constitutional duty it is to exercise this power, will always, no doubt, act with great deliberation, and exercise their soundest judgment, and determine whether the safety of society will admit of the pardon; for a false notion of mercy to the the supplicating convict, may be a great outrage upon society. It may encourage wicked men, who meditate the most serious offences against society, to hope that if they should perpetrate the crime, and be detected and convicted, pathetic and influential appeals to the pardoning power might so operate on its sympathies as to secure their ultimate escape from punishment. Public policy, then, which certainly would not forbid a consultation and conversations between a member of the Legislature, and persons who are not members, on the subject, to obtain the benefit of a friend’s judgment, requires *265that appeals from mercenary men, who present themselves as disinterested zealots in the cause of mercy and justice, should not be tolerated. The members of the Legislature, who are enquirers after truth, and anxious to discharge their responsible duties to the country, cannot tell, when they are approached by a gentleman on the subject of apardon, whether he is a disinterested person, or one feed to obtain a pardon. The opinion of the latter is worth nothing, while the views of the former might be entitled to great consideration.
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-
*266There is great danger to the public safety and interests in allowing cases to be argued from day to day, before the Legislature as though the convict were on his trial. The Legislature has no judicial powers, and it cannot organize itself constitutionally, into an appellate judicial tribunal to hearthe case again. It is said, the evidence is taken down, and is required to accompany the application for a pardon, and if the Legislature .cannot enquire into the guilt of the party, why send the evidence? The answer is easy. To enable the Legislature to determine for themselves whether there is any thing in the circumstances of the case that, in the judgment of the General Assembly, commends him, though guilty, to their mercy. And again, it sometimes, but very seldom happens, that evidence comes to light after the conviction and sentence and the adjournment of Court, which could not have been discovered or had by any possible diligence on the trial, which, taken in connection with the evidence, very probably (a strong probability) would have produced an acquittal.
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.
*267The principle contended for by the defendants in error, was long ago decided in England by Lord Elden, in the case of Norman vs. Cole, 3 Espinasse 253. In delivering the opinion Lord Elden said that “when a person interposes his interest and good offices to procure a pardon, it ought to be done gratuitously, and not for money; the doing an act of that description should proceed from pure motives, not from pecuniary ones.” See also, Hutzfield vs. Gulden, 7th Watts, 152. The case of Formby vs. Pryor, 15th Geo. Rep., 258, is no precedent nor authority for the plaintiff in error in this case. That was an application to the Governor for a pardon. The application here was to the General Assembly. In that case, the Governor allowed the party applying, to submit evidence to him. In this case, the General Assembly allowed no such thing; if it did, it does not appear.
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 *268that in the minds of Legislators, the evidence of guilt to warrant the conviction was so slight as to imply, strongly, that it must have been produced by unjustifiable causes. Organized as our judiciary is, however, such cases can seldom, if ever arise. I mean that the Legislature should not re-try the case. But it is replied, shall an innocent man be punished. Unquestionably no. But if he be innocent, the majority of a" body, composed of upwards of two hundred enlightened men, will easily discern it, without extraneous aid. But the pardoning power was conferred on a constituent part of the government, mainly for the pardoning of the guilty. In the exercise of the power, functionaries entrusted with it, should never forget that the pardon of the convict, in this particular instance, is equivalent to the repeal of the law against the crime, as to him. There should be strong reasons for it, such as that by the pardon the government would derive information in respect to other offenders, more important to the interest and safety of the country than the punishment of that individual; that, though guilty, and the convict was of sufficient mind and age to be capable of committing a crime, yet he was of a capacity so weak, and an age so tender, that he was made the dupe of stronger minded, depraved men; or, as in cases of riot, resulting in murder or other high crime, when the outrage was planned and gotten up by a part of those only convicted, and others were unwittingly led into it or too weak to resist tumultuous appeals to join, and in all such cases, then it might be considered that the punishment of the principal offenders alone would answer all the objects of punishment. It is unnecessary to attempt to state all the multitudinous cases in which it would be proper to pardon a convicted man. It is sufficient for me to say, in conclusion, that I consider it opposed to the best and wisest public policy, to permit men, for pay, to attempt to impress the mind of the pardoning power, either for or against the exercise of that power, in any case; that it ought to be left free to-act on its *269own impressions of the public good, uninfluenced by the importunities of interested and paid agents, and that I am, of course, for affirming the judgment of the Court below.