
    Cardin v. Boyd.
    Consideration. Failure. Assignee of bounty claim. A. party who has bought a claim for soldier’s bounty from the assignee of the soldier before the bounty has been allowed by the proper department, such assignment being void by act of Congress, may recover the price paid as money paid upon a consideration which has failed.
    FROM MONROE.
    Writ of error and supersedeas from Circuit Court of Monroe, January Term, 1872. E. T. Hall, J.
    Burge, for Cardin, said:
    It is claimed for plaintiff in error that there is but one question of law involved, to-wit: Whether a person who may buy a claim as the second assignee thereof against the United States before its allowance, and pay therefor, can disaffirm his contract thus executed and consummated, and recover back from first assignee his money on failure through mala fides of the claimant to get the money paid on such claim, delivered to him when same allowed and paid by the government. And it is maintained that there cannot be had any such recovery, and the following proposition of law is presented and relied upon in support of this proposition: A party to an executed contract, which is void or contrary to public policy, or is both void and contrary to public policy, cannot be allowed the aid of a court of justice to set aside the contract and redress himself on his disaffirmance of the same, but he will be repelled. Allen v. Dodd, 4 Hum., 131-134; Yerger v. Rains, 4 Hum., 259-267; Haggatt v. White, 2 Swan, 270; Wood v. Stone, 2 Col., 396; 2 Par. Con., 253, 254; 262#, 262h; Chitty Con., 192, 193.
    The statute violated is as follows: “ That all transfers and assignments hereafter made of any claim upon the United States, . . . shall be absolutely null and void, unless the same shall be ..freely made and executed in the presence of at least two attesting witnesses after the allowance of such claim.” See Act of Congress, approved February 26, 1853, sec. 1, 7, entitled “An act to prevent frauds upon the treasury of the United States. ' Raff’s War Claimant’s Guide, 336; U. S. Statutes at large, vol. 10, pp. 170, 171.
    But should it be considered that the foregoing positions are not tenable, and that such assignments as were attempted of said claim are valid, then it is believed that the plaintiff cannot recover as against Cardin, but that he must go against McDermott, thé first assignor against whom plaintiff’s right of action was complete as soon as McDermott collected the claim, and for two reasons:
    1. Because of McDermott’s collection and detention of the money, he being 'the original assignor.
    2. Because of Boyd’s having constituted McDer-mott, or his identifying witness, Johnson, his (Boyd’s) agent to go to Knoxville and draw the money for him, Boyd, and his, McDermott’s, failure, without Cardin’s fault, to pay it to Boyd after he, McDermott, had so collected it. Besides, Cardin was not bound as an assignor of negotiable paper would have been.
    McCeosky, for defendant.
   Deadebick, J.;

delivered the opinion of the court.

Thomas McDermott, colored, had been a private in the United States army, and under the laws of Congress was entitled to a bounty of about $200. This he assigned to Cardin in December, 1867, and Cardin assigned it to Boyd October, 1868. By the Act of Congress such transfer and assignment of a claim upon the United States was declared null and void, unless made after the allowance of such claim in the presence of two attesting witnesses. In this ¶ case the claim was not allowed until after the assignment to Boyd, and he took nothing by the assignment made by Cardin to him.

McDermott drew the money himself, the disbursing officer refusing to pay it on his power of attorney or assignment. He left it in the hands of Johnson for safe keeping, and subsequently gave Cardin an order oh Johnson for it, and it was paid to him.

Boyd brought this action to recover back the money paid to Cardin for the claim. It is clear Boyd got no consideration for the money paid to Cardin. Cardin had no right, under the - assignment to him, to draw or receive, or transfer to another, any claim to the money due to McDermott, and Boyd might well maintain his action to recover back from Cardin money paid to him under a mistaken belief by both, that Boyd was receiving and Cardin assigning a valuable consideration for the money paid. The suit here is not to enforce a contract which is malum in se, immoral, or against public policy, but was instituted to recover back money paid by Boyd to Cardin for an obligation on McDermott, which could not be enforced at law. We think the ruling of the Circuit Judge, that the plaintiff might abandon the void contract, or contract which could not be enforced, and sue for and recover the money, was correct.

Let the judgment be affirmed.  