Wilamouicz vs. Adams. [JANUARY a contract as the defendant is under any legal obligation to perform. The indispensable requisites of all valid contracts are, first, that they should be made by persons having a legal capacity to contract: secondly, that inducement or motive of the contracting parties, called the consideration, should be legal: thirdly, that they should be made without force or fraud, freely and voluntarily: fourthly, the act performed or contracted to be performed by it, must be such as the law permits. (See Law Summary by CLINE, p. 19 and 20.) Every contract the consideration to which is tainted with illegality, is void; and as the consideration of a contract is two-fold, moving from either party to the other, it follows that every agreement to do an illegal act is invalid, the act being the consideration on one side. A contract may be illegal, because it contravenes the principles of the common law, or the special requisitions of a statute. The former illegality exists whenever the consideration is founded upon a transaction which violates public policy or morality; as, a contract to commit, conceal or compound a crime, a contract for illicit co-habitation, or a contract in fraud of the rights and interests of third persons. The illegality created by statute, exists when the act is either expressly prohibited, or where the prohibition is implied from the nature and objects of the statute. (See Story on Contracts, p. 87.) The 24th sec., chap. 23, of the Digest, provides that the Treasurer shall disburse the public moneys upon warrants drawn upon the Treasury according to law and not otherwise, and the 29th sec. of the same chapter, declares that where there may not be sufficient par funds in the Treasury to pay all legal demands upon the State, it shall be the duty of the Treasurer, on application of the claimant to issue to him a treasury warrant for the amount due bearing no interest. It is clear from these provisions of the statute, that the Treasurer is authorized to pay out the money or to issue his warrants, in case the money is not in the Treasury to the individual who presents him the Auditor's warrant, and to him only. That is his only authority to pay the one or to issue and deliver the other, and if he does otherwise, he necessarily acts in direct violation of, and in defiance of the express prohibition of the statute. True it is that the declaration alleges that he had in his hands and under his control a sufficiency of the scrip of Hayden to have discharged the claim of the plaintiff. But can it be inferred from this allegation, that Hayden had previously presented his Auditor's warrant, and actually drawn the scrip, and that he had afterwards returned it to the defendant, and left it in his hands as a private individual. This cannot be the legitimate construction of the contract as disclosed by the declaration. The Treasurer stipulated before the scrip or warrants became due, that when they should fall due and become payable to Hayden, that he would not deliver them to him, but that he would withhold them from him and deliver them over to the plaintiff. This is the substance and legal effect of the undertaking on the part of the defendant, and this he most clearly could not do without a plain and palpable violation of the statute, and consequently, under the authorities, he could not be compelled to perform his promise. To tolerate such conduct on the part of a mere disbursing agent, would be to defeat the very object of the statute. (See McMeechen v. The State, 4 Eng. Rep. 553.) It is clear therefore that, even upon the supposition that the special contract thus set up and relied on, is literally true in point of fact; yet it discloses no such cause of action as can be enforced in law, and that consequently the demurrer was rightfully sustained. The judgment of the circuit court is consequently in all things affirmed. Scull et al. vs. Edwards, surv. [JANUARY SCULL ET AL. vs. EDWARDS, SURV. When one makes a promissory note, payable to his own order, and then endorses and delivers it to another, he has, in legal effect, but made an ordinary promissory note; because, until endorsed, the instrument is imperfect, and has no validity as a promissory note. The first endorsee of such a note, does not take a derivative but a primitive title, and therefore the endorsement, as to him, is not technically such, but a part of the instrument itself, thus made valid. Where suit is brought upon such instrument, and the defendant craves oyer of the "writing sued on," grant of oyer both of the body of the instrument and the endorsement is strictly responsive to the prayer of oyer, and both become part of the record. Appeal from Jefferson Circuit Court. THIS was an action of assumpsit by Edwards, survivor of Mygate & Edwards, against Scull & Bro., on a note made by defendants, payable to their own order, and endorsed by them to Mygate & Edwards. The defendants craved oyer of the "writing sued on,” and the record states that it was granted, but does not state how, nor does the instrument appear of record until copied in a bill of exceptions taken at the trial. Defendants pleaded non-assumpsit-there was a trial and judgment in their favor, which was reversed by this court on appeal. See Edwards, surv. v. Scull et al., 6 Eng. R. 325. After the case was remanded, there was a trial, and verdict for plaintiff. Defendant moved for a new trial on the grounds, that the verdict was contrary to law and evidence, and that the court erred in refusing instructions moved by defendants, and in giving others to the jury. The motion was overruled, defendants excepted, and took a bill of exceptions, as follows: "Be it remembered that on the trial of this cause, the plaintiff TERM, 1852.] Scull et al. vs. Edwards, surv. offered in evidence, the following instrument of writing, it being the same given on oyer, and which is in the following words and figures, to wit: "$1,556 75. New Orleans, Dec. 14th, 1847. On the first day of June after date, we promise to pay to the order of ourselves, fifteen hundred and fifty-six 75-100 dollars, at the store of Mygate & Edwards, in this city, value received. H. SCULL & BRO. And endorsed thus: Pay Mygate & Edwards. H. SCULL & BRO." The counsel of defendants objected to said instrument being read to the jury, because of the variance between it and the instrument described in the declaration; but the court overruled said objection and permitted the same to be read in evidence, to which defendants excepted, &c. This being all the evidence that was offered or received on the issue, &c., the defendants' counsel moved the court for the following instructions to the jury: 1st. That the allegations in the declaration and the proof must agree. 2d. If there is a material variance between the allegations in the declaration and the proof, the jury will find for defendants. 3d. A promissory note is a writing which contains a promise of the payment of money to another, at or before a time specified, in consideration of value received by the promisor. The court refused to give said instructions, but gave the following, of its own motion: Under the declaration, the instrument offered in evidence is sufficient to enable the plaintiff to recover. To all which, &c., defendants excepted, &c., &c. ENGLISH, for the appellants. The court erred in refusing to give the first and second instructions. They were clearly law, and not abstract, because the instrument sued on was not put Scull et al. vs. Edwards, surv. (JANUARY upon the record by grant of oyer, nor was the endorsement. The record does not show a grant of oyer by acceptance (Kelly v. Matthews, 5 Ark. 227) or filing a copy (Renner v. Reed, 3 Ark., 349.) The statement in the bill of exceptions that oyer was granted, amounts to nothing. (Clark v. Gibson 2 Ark. 112.) Oyer of the note was craved, but not granted; and if granted, there was certainly no oyer of the endorsement. (McLain et al. v. Onstott, 3 Ark. 617.) Hence, there was no proof of the note and endorsement set out in the declaration; and the instructions should have been granted. The instrument sued on was not a promissory note, Ch. on Bills. 516; nor capable of being assigned as such. The evidence did not sustain the verdict. The declaration declares upon a note of a certain date, and averred an endorsement on the day of the date. The record shows that the note was read, but there is no evidence that the plaintiff read the endorsement, which was necessary to be done, to warrant a verdict in his favor. The plea admits the execution of the note, (1 Eng. 186. 2 Eng. 112,) but does not dispense with the reading of the note and endorsement. (2 Eng. 112. Stark, on Ev.' 2 vol. 202.) But if the endorsement was read, there was a variance; because the endorsement is without date; and the party was bound to show an endorsement on the day of the date of the note. As the endorsement was without date, he should have described it as such, and proved an endorsement before suit brought. WATKINS & CURRAN, contra. The legal effect of the instrument sued on, when endorsed, was the same, as if, in its face, it had been made payable to the plaintiffs. Such notes and bills are very common in the commercial world. 2 Bl. Com. 467. Story on Prom. Notes, 4. Ch. on Bills, 553. This court has already decided that there was no variance between the note set out in the declaration and the one read in evidence, (6 Eng. 325,) nor can a variance be objected at the trial, after oyer craved and granted. (5 Ark. 223.) |