Tho appellee brought suit before a justice of the peace of Independence county, against the testator of the appellant, upon a promissory note, executed by the deceased to William E. (3-ibbs, or bearer, for $75, and transferred to appellee by delivery.
Upon the trial the justice of the peace found for'the plaintiff, and rendered judgment for the amount of the note and interest. Ruddell appealed to the circuit court, and upon a trial there had, before the court, a like finding and judgment wa^ held, and Ruddell appealed to this court.
Upon the trial in the circuit court, the appellee read the note sued upon, as evidence, and rested his case.
The appellant then introduced William Byers as a witness, by whom he proved that the note sued upon was given in part payment for certain horses, which had been purchased for the express and well understood purpose of mounting certain men, who had volunteered to engage in rebellion and war against the United States; that a company of cavalry were organizing, under the payee of tho note as a captain, for that purpose, and that a part of the men had no horses, and were unable to buy, and to secure their services the maker of the note, and others, who were not engaged in the rebellion, but who wished to aid it, agreed with one Ilirsch, who had horses he wished to sell for such purpose, that each of them would become responsible *240for a certain amount, if lie would let the unmounted men, so desiring to go into the war, have the horses; and it was agreed, between all concerned, that the horses should be furnished upon these terms, and that the said Gibbs should endeavor to collect of his soldiers, and pay over to Ilirsch, &c., and that the note sued upon was given for such consideration.
There can be no question but the whole transaction was not only contrary to public policy, but was palpably illegal and treasonable from its inception, and all attempted obligations made or passed between the parties were absolutely void, as has been settled by this court, at the present term, in the case of Tatum, et al., v. Kelley. See Story on Contracts, (4th ed.,) 486 and 595; 1 Parsons, 393 and 395; Wilamowicz v. Adams, 13 Ark., 22.
The appellant had the same right to set up the illegality of' the consideration against the appellee as against the original payee. See note in Gould’s Dig., chap. 15; Williams v. Mathews, 3 Cowan, 252; Chitty on Con., 575, and note; Swift v. Tyson, 16 Peters, 1; 9 Barbour, 2, 14.
Upon the trial, before the court below, the appellant asked the court to declare the law to ho, first, “that, unless it'appears from the evidence that the plaintiff became the owner of the note sued upon before it became due, the defendant is entitled to all the defenses which he or his testator could have Made against the party to whom the note was given.
2. “ That the transfer or assignment of a note should be taken to have been made on such day as is most to the advantage of the defendant, unless it appears by the evidence the time, in fact,'when the transfer or assignment was made.
3. “ If it does not appear, in this case,' when the note sued upon was transferred or assigned to the plaintiff, then the defendant can make any defense which he could have made against the party to whom the note was given.
4. “ If it appears from the evidence that the consideration for which the note ivas given ivas illegal, the court, sitting as a jury, should find for the defendant.”
' To the declaring of which to be the law applicable to the *241case, the plaintiff objected. The court sustained the objection, and refused to declare said propositions, or any of them, to be the law applicable to this case. In this the court certainly misapprehended the law. "We are of opinion the appellant did not state the law as strongly in his own favor as he might have done, and that the court erred in refusing to declare the law as moved by him, as well as finding against the appellant, upon the evidence. For which error, the judgment of that court is reversed, and this ease remanded.