
    
      HARVEY vs. FITZGERALD.
    
    Appeal from the court of the parish anjl city of New-Orleans.
    When the illegality of a contract is not pleaded, and does not appear from the evidence in support of it, if there be a verdict for the plaintiff, the judgment will not be disturbed, though some evidence of the illegality may result from a cross examination of the plaintiff's witnesses, or from the testimony adduced by the defendant.
    For a statement of the facts, see the opinion of the court.
    
      Workman, for the defendant.
    This is one of these extraordinary suits, to determine which, correctly, will require all the care and attention of the court. We maintain that the claim of the plaintiff is founded in impudent fraud, and supported only fay nefarious perjury. It appears by the testimony on the record, that some time in the month of February, 1817, Fitzgerald went down to the English Turn,, where Harvey had been some lime. Fitzgerald took a lodging for him at the milk house in this city, visited him there occasionally, discounted some western bank notes for him, and, having paid some of his expenses, took a passage for him to Liverpool. The first intelligence Fitzgerald had of him, was by a letter written from the Balize, and received about ten days after his departure feom New-Orleans. In this letter, he states that he expects a schooner" of his will speedily arrive in this port from Campeachy, which he begs the defendant to take charge of -for him, and dispose of the cargo on his account; and he concludes with an earnest request of the defendant to accept for him a bill for 50 pounds.
    
    Would any such request have been made, in such terms, if he had left in the hands of the defendant property to the amount of S9000, or of half or quarter that value ?
    The plaintiff’s next letter, dated Ulverstone, June 20, 1817, presses the defendant to write to him ; talks of his suits in the supreme court, and says, that he is quite unhappy about this business. The next letter, dated the same place, June 27, 1817, appeals to the defendant as his assured and generous friend ; hopes that he (defendant) will not be offended at the length and frequency of his letters, though he has ample reason to be so, and again recurs to the business of the law suits, &c. The next letter is from the same place, dated August 6th, 1817. It speaks, as before, of the causes in the supreme court, adjures the defendant, by the mercy of God, to write to him, and informs him that he has taken the liberty of drawing on him for 100 pounds. However, he adds, if you are under a certainty of my having received the expected relief from Washington ere this, then you need not accept it, as in that case it will be unnecessary. Is not this observation incompatible with the assertion that the writer had left any considerable properly at all, with Fitzgerald?
    
      The plaintiff’s next letter is from Ulverstone, September 30th, 1817. The writer says, *'a-Rain I have to inform you that Counsellor Inger* so¡ never Wrote to me, though I sent him all the sworn attestations of my mate and crew, and also the notary public’s declaration. I cannot tell what can cause this miserable delay. The underwriters cannot want more proof than I have given. It is grievous to me, I assure you, more than I can say. I entreat of you, for the mercy of God, to write them yourself, and let me know their answer per next opportunity,” &.c.
    This letter is important, as connected with another part of our testimony ;—that, to wit. by which it is admitted that Fitzgerald called on Mr. Ingersol at Philadelphia, to enquire concerning the causes spoken of by the plaintiff. ]Vlr. Ingersol said he knew nothing of any such cause. This shews that the defendant believed the plaintiff was speaking of a real, not a sham, transaction ; and will, therefore, satisfactorily account for the defendant’s having received some of Harvey's letters without expressing any surprise at the correspondence. The same inference may be fairly drawn from the letter of the plaintiff’s, in which he promises the defendant the consignment of a vessel and cargo from Campeachy. These remarks may be proper to rebut the insinuation so often made and so much insisted upon by the opposite party-*-4< If Fitzgerald had no other business with Harvey than what he alledges, concerning the discounting of the Kentucky bank notes, why did he continue to receive these letters of Harvey’s and keep them in his pocket
    The next letter of the plaintiff’s is dated Ul-verstone, January 21st, 1818. He speaks of the cruel and shameful conduct of Captain Sandford towards him ; how infamously he had abused his (plaintiff’s) credulity ; though strong, and fortified by distance, &c. he (plaintiff) threatens to visit his thoughts with more troubles than he is aware of It is strange, the letter adds, he had not artfully invented some plausible tale all this while, but it is now too late for credulity to swallow. I shall not delay your time longer with a business that I am determined, after a sufficient season, to give publicity enough .to.”
    Perhaps he (Sandford) has now serious thoughts of selling my schooner, which you recollect he has in his power : let him do so, and it will only hurry the termination of his infamy and exposition.”
    These letters appear to shew, that at the time of writing them, the plaintiff had formed, in his mind, that plan of fraud and forgery which he is now endeavoring to carry into execution. The letters in question have an air of constraint an4 mystery. When the writer says “¿if is strange he has nmt invented some plausible tale” he probably had in contemplation those letters which he had determined to forge, which are now offered in proof of his claim. The plausible tale he thought of for the supposed Captain Sand-ford, is the pretended sale of the imaginary coffee and logwood, to Wellman and Phillips The bankruptcy of that firm he could easily have learnt, as he resided so near Liverpool. In fact, it does appear, from his letter tolNir. William Brown, that he was acquainted with that event.
    These considerations will also serve to account for a circumstance, which, at first, seemed very extraordinary, viz : the mention in the plaintiff’s letter of Fitzgerald’s illness. That letter is dated in March, 1818, and that the illness happened in September, 1817. There is, therefore, nothing in the least surprising that Harvey should have heard of it in the intervening period.
    The very ingenious fabrication of the Orleans post mark, is by no means a wonderful effort of forgery. He, who could so well imitate the defendant’s hand writing, and write letters in such - a variety of hands, would find little difficulty in imitating a post mark, so well as it has been done in this instance. The last letter of this person to the defendant, is dated New-Orleans, October 1818. It it is filled with invectives and reproach- , . ,. 1 , . es, no longer mysterious and indirect; and is evidently intended as an instrument of extortion, By the menace of an accusation of some hidden and atrocious crime, the writer, no doubt, expected to be able to obtain his ends without producing his forged letters, and thereby exposing himself to the risk of punishment. For, let it be remarked, that he did not produce those letters for a long time subsequent to his arrival in New Orleans, nor until he found his letter of menace had entirely failed of its intended effect.
    It is evident that Fitzgerald had no apprehensions from any thing which this letter hints at, or threatens ;—from the following circumstances :
    1. That he left no instructions with his agents, Messrs. Cummins and Ramsay, not to open any letters sent to him during his absence ;
    2 That he expressed no dissatisfaction, or disapprobation on finding that these letters had been opened without his consent;—and that he has actually shewed the letter in question to several persons ;
    3. That on receiving intelligence of what was passing, he immediately repaired to this city, where he has ever since remained, and appeared in public.
    
      4t. That so far from dreading any accusation that the plaintiff might make against him, or any* testimony that he could give, if he were disposed to turn state’s evidence and informer, Fitzgerald has exerted himself repeatedly to have the plaintiff arrested.
    This completely destroys the imputation that Fitzgerald was only anxious to get his opponent put out of the way.
    There is another circumstance strongly in favor of Fitzgerald’s innocence- A short time before he left New-Orleans for the north, he was offered S12000 for his house in Royal-street; one. half of the money down, the other in negotiable notes. Would he—would any man in his senses have refused this offer, and left the state, menaced, as he then was, by Harvey, and knowing that the property, which he could have so easily converted into cash and taken with him, was exposed to be seized in a suit like the present? Either this suit is groundless, or Fitzgerald must be an absolute idiot.
    Although this fact, taken by itself, might not be considered decisive, it corroborates powerfully all the other circumstances in the defendant’s favor
    But what can account for the conduct of Harvey in this extraordinary transaction ? Habitual guilt and extreme misery . From the variety of his modes of writing, it is evident he must be an , , , expert, able, and long practiced forger of writings ; and his letters acknowledge his extreme poverty. He thought that the business which he had actually transacted with Fitzgerald would serve as a foundation for his subsequent operations ;—as a point on which the machinery of his fraud might be conveniently established Without some such support, ail attempts of the kind would have been obviously void and idle : and this may account for his selecting the defendant, in preference to any other person here, as the object of his depredation;
    Stratagems of this sort, though of very rare occurrence on this side of the Atlantic, are frequently attempted in Europe by the unprincipled and desperate.
    The plaintiff’s letters, to which I have requested the attention of the court, are fatal to his claim, whether they are construed literally, or otherwise. If taken literally, there was evidently no sale of, no transaction whatever between the parties relative to, the coffee or logwood, on which the suit is founded. If the letters are to be considered as mere cyphers, then there mist be some unknown, some mysterious transaction between the parties, very different from that lawful one, which the plaintiff sets forth in .his petition. In this case, he cannot recover. His petition is sworn to. If his demand is not proved ⅛ 4 as it is there stated, the whole of course must f'a]l to the ground.
    Again ; if those letters be written enigmatically, why does not the plaintiff explain them ? He must have the key or clue to them ; and he alone is competent, according to our rules of evidence, to produce it. It is for the plaintiff to make out and prove his own case. If there is any mystery lurking in his letters, it affords an additional proof of his villainy, which alone must be suf. ficient to defeat his action.
    In the letters attributed to Fitzgerald, all is plain and clear. Coffee and logwood are called by their proper names. Would this have been the case, if these letters were genuine, and if any such transactions as these mysterious letters hint at, had ever taken place ? If there had, then Fitzgerald’s letters would have been in the same style of mystery and cypher as those of Harvey.
    As to the meetings stated to have taken place between the parties, they can prove nothing more than that Fitzgerald was desirous of knowing, what his adversary meditated against him , or at worst, that he wished to purchase his peace : ¾ thing which the law allows every man to do.
    With respect to the account current, annexed to one of the letters attributed to the defendant, I think it bears internal evidence that is a forgery.
    
      1. The price of the coffee in it is credited too . high, by at least four cents per pound. How could this arise; when, by the supposition, it was the intention of Fitzgerald to defraud Harvey ?
    
    2. No commission whatever, is charged to Harvey. Why omit this charge, when the person supposed to make this false account is en-deavouring to cheat his correspondent.
    3. This account of the sales of upwards of nine thousand dollars worth of Harvey’s property is dated March 2d, the very day that Harvey is proved to have sailed from New-Orleans, and but a few days previous to the time, when he earnestly supplicates Fitzgerald to accept for him a bill of Z. 50, sterling. Is not this circumstance alone decisive of the case ?
    4. The fabrication of the names of W^ellman and Phillips, as the purchasers of Harvey’s property, was too gross a blunder for any but a downright ideot to have made. The falsehood of the pretended sale could not have escaped very speedy detection. With respect to the facts stated in the fabricated letters, the plaintiff might, and probably did, know many or most of them, inasmuch as he admits having received other letters from Fitzgerald, which he does not produce,
    
    Why does he not produce these letters ? Because they would prove that his claim is unfounded. We have no copies of them ; and, if we had, they would not ’be evidence for us. The plaintiff’s holding back these letters is a de~ cisive, presumption against him. There is no real, no solid foundation whatever for this suit. No delivery of merchandize has been proved. No mention of coffee or logwood is to be found in any of the letters of the plaintiff, nor in the depositions of any of the witnesses, though they have been closely interrogated as to every part of the defendant’s trade and transactions. No receipt has been produced, or is pretended ever to have been given by the defendant for the merchandize in question. Is it probable, is it possible, that any man, least of all such a man as Harvey, would have placed property to the amount of $9,500 in the hands of another, and quit the country without ever asking for a re ceipt or acknowledgment of it ?
    
    In siu.h an action as this, it as necessary to prove the corpus pacti—the existence of the matter or substance of the contract, as in a penal case it is indispensable to prove the corpus criminis. Without this, even the confession of the accused is not sufficient to convict him.
    According to Harvey’s own admission and statements, the transaction on which he builds this suit, is one prohibited by law: and if any credit Be given to what he says in his latest mena. cing letter, it is some transaction of the blackest . . . guilt. Such a plaintiff can surely not recover, in such a case, even if every thing he states were taken for granted. The Roman law on this point is most clear. “ If a stipulation is made on account, or in consideration of any offence already committed, or about to be committed, such stipulation is void from the beginning. Si, flagi-tii faciendi vel facti causa, concepta sit stipulatio, ab initio non valet.
    
    The Spanish law is equally positive. Stipulations against the laws or sound morals are proscribed and void. 1 Sala's Illustracion, 238, Part. 5, 11, 28 & 38,
    “ It is indispensable to the validity of a contract, that it be licita, honesta, y arreglada a la ley y buenas costumbres. Febrero, 1, 18 § 1,
    These rules appear to be universal, admitting no exception in any case where both of the parties are in fault"
    In the English law books, we find some instances where contracts, made contrary to the provision of statutes, are allowed to have effect to a certain extent, by the court of chancery ; on which I beg leave to observe :—
    1. That our tribunals have no such power as that exercised by courts of chancery ; the power of modifying and mitigating the rigor of severe laws.
    
      ^ cases alluded to, where that mitiga* ting power has been exercised, the offence has been oí a very dubious nature ; the offence of usurious contracts. Some of our best ethical and political writers deny that there is any turpitude, injustice, or immorality in such conventions.
    3. Lastly, the offence, in most if not all of these cases, was not consummated, but only intended. The usurious interest was stipulated for, but not actually received. Thus the court rendered a judgment in the case of Catalina Lopez, which at first view seems to militate with the principles here laid down. But on nature consideration it will appear that there were several important circumstances which distinguished that case from the present.
    1. That was a case of a simulated contract, where no consideration whatever, was given, and therefore the contract was wholly void.
    2. The immorality of the purpose of that contract is by no means clear. The plaintiff’s t stator apprehended that his enemies would institute against him, some unjust prosecution, and he therefore, wished to put his property out of their reach. Many simulated contracts, may be supposed perfectly consistent with morality and the laws—a simulated contract of sale, for instance, to skreen our property from the enemies of our country ; and the like.
    
      3. Whatever, may have been the intentions of that testator, he did not, in fact, violate any law. he did not withdraw his property from the pursuit of justice or of injustice ; for no prosecution whatever, was instituted against him. Even he must be considered rather as intentionally than as actually culpable, on the harshest construction of his conduct.
    4. But above all, that case is distinguished from the present by this circumstance, that in the former, the plaintiffs were innocent, and represent those who were perfectly innocent of any fraud or deception whatever. The plaintiffs were the executors of the simulated vendor, representing his creditors. As to them> the reason of our maxim does not all apply. The object of of the law is to discourage illicit transactions.— But no encouragement is given to wrong doers by affording relief to their creditors, nor even, perhaps to their heirs. Such persons, in general, care little about either. At all events the principal of the law is positive that where the plaintiff is innocent, he may recover back what he hath paid, given or transferred without a just cause or good consideration, ff. De condictione ob turpem causa m.
    
    In the English and American jurisprudence, the authorities on the point now under consideration are ; (Here the counsel referred to various English and American reporters.) Our own Civil Code, 264, art. 31 & 23, adopts the same doctrine. And all are agreed, even in England where the strictest rules of special pleading are adopted, that if from the plaintiff s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the breach of positive law, the plaintiff cannot recover, ho court will lend its aid to a man, who founds his cause of action upon an immoral or illegal act. “ Whenever courts of law see attempts made to conceal wick-* ed deeds, they will brush away the cobweb, varnish and shew the transactionsin their true light.” It is not necessary for the defendant to plead the illegality or immorality of the transaction ; for it is not for his sake, but for public justice that such, a defence is allowed Were it required to put such a defence upon record, it would of course seldom or never be done. It would be a confession of guilt which might lead a defendant to the gibbet or the whipping post. Such a doctrine in pleading would be an effectual provision for enabling malefactors to enforce their contracts with each other. Thieves, robbers and pirates might then boldly sue the receivers of their plunder, well assured that the defendants would not dare to put their own crimes and infamy upon record. [Here the council cited a great number of books in support of the doctrine for which he contended.! It is the policy of the A law, not to give to such villains any assistance whatever, but to defeat their conventions and break up their confederacies. They will then have no resource left, but to come out against each other as state’s evidence and informers, and thus the community will be benefitted by their detection and punishment.
    
      Hemien, for the plaintiff.
    From the testimony produced by the defendant himself, it is evident that there were some transactions, between him and the plaintiff, of long standing. He continued to receive letters from the defendant, for upwards of a twelvemonth, and then, when a note of the defendant’s was presented to him, he told the notary, he knew nothing about him. The whole conduct of Fitzgerald throughout this business, was marked by falsehood, duplicity and fraud. If there was any mystery or enigma in the letters, surely Fitzgerald must know it. Why then does he not explain it ? Why does not he tell the court who is meant by that infamous Capt. Sanjord, who so cruelly and shamefully abused the credulity of his friend, and endea-voured to cheat him of his property. The defendant would do better, to say nothing about villainy in this business. If there is any villainy in it, he has his full share.
    
      As to what is sard of Fitzgerald s anphcation to Mr. Ingersol, it is oi little consequence; as tjiat application was made, after he had heard of Harvey’s arrival in this city to sue him. Noi will the court allow any weight to the circumstance of Fitzgerald’s refusing to sell his house. It is always through some weakness, folly or oversight, that fraud and villainy are detected. Quos deus vult perdere, &⅜.
    The letters and account current, on which the action is founded, have been proved to be the hand writing of the defendant by several credible witnesses—-respectable gentlemen of the banks, perfectly acquainted with Fitzgerald’s hand writing. The only testimony, at all in opposition to this, was given by persons who had been told by Fitzgerald, that the letters were forgeries, and whose minds were therefore prejudiced.
    The proof of the post mark by the clerk of the post office, first sets the question of the genuineness of those letters at rest. The private meetings and conferences, between the defendant and Harvey, at the very time, when the latter pretended he was endeavoring to have him arrested, explain this as well as other parts of his conduct. Basset’s testimony on this point is conclusive.
    On the whole, nothing appears which can jus--fcify the court, in disturbing the verdict of the jury, on the grounds stated by the defendant. If the verdict is to be altered, it can only be by increasing the damages. As to the question of law, as to the defence set up of a smuggling transaction, it cannot be admitted in this cause. There is no proof that, Fitzgerald knew of any such transaction, if it ever existed. The property was delivered to him to be sold by him, for the owner. How the owner acquired it, or how he introduced it into this city, was no business pf the defendant. It is only when both parties are in pari delicto, that this defence is admissible.
    But if such a defence were applicable, it could avail only when pleaded on the record. It was indispensable according to the rules of our practice, and those of the codes from which ours was taken, to plead such a defence before any evidence of it could be given, in order that the opposite party might be put upon his guard, and enabled to rebut the testimony that might be offered against him. [In support of this position, the counsel cited various authorities from the Pandects, and from the Spanish law.J
   Matthews, J.

delivered the opinion of the court. This is an action brought by Harvey, to recover the price or value of a quantity of merchandize, described in the petition, which he al!edSes were placed by him in the possession of' Fitzgerald, to be sold on commission for and on account of the plaintiff. He charges the defendant with an intention of defrauding him, by detaining the proceeds of the merchandize to his own use.

The answer contains a general denial of all the allegations in the petition, and on this issue alone, the case was tried by a jury in the court below, where a general verdict was found for the plaintiff, and judgment having been given therein, the defendant appealed.

In the course of the trial, in the court a quo, it appeared by the testimony of some witnesses, that the plaintiff had acknowledged that the goods, to recover the value of which this suit is brought, were smuggled, and that it was a smuggling transaction between him and the defendant.

On this evidence, it is insisted by the counsel of the defendant and appellant, that should this court be of opinion that such a contract, as stated in the petition, really existed between the parties, it must be considered as illegal and void, on account of having for its foundation a transaction in fraud of the revenue laws of the United States—that is one, in which courts of justice ought not to interfere to relieve either party, ac, cording to the maxim, ex turpi causa non oritur actio.

The principal evidence., in support of the plaintiff’s claim, consists of letters from the defendant, and a feigned account of sale of the goods, made by him to Wellman and Phillips. Witnesses were also introduced to shew the intimacy, which subsisted between the parties, about the time at which the property may be supposed to have been delivered to the defendant. From the whole testimony, as it comes up with the record, we see no reason to differ from the jury, in relation to the important facts of the case.

Contracts, which are founded on smuggling transactions, wherein both parties have been concerned, are clearly such as will not be enforced by courts of justice, and whenever facts are established according to sound rules of pleading and evidence, shewing their illegality and turpitude, actions to carry them into effect ought not to be sustained.

Since this cause was argued on its merits, a new discussion has taken place, at the request of the court, on the question whether the defendants can take advantage of the illegality of the contract, without having alledged it in his answer. Our laws, on the subject of the practice of courts in civil cases, contain provisions tending as much as possible to simplify it and relieve ys from all unnecessary technical rules, relating to sPec*a^ Pleadings. But parties, in a suit are bound on the one side, plainly and substantially to set forth the cause of action, and on the other, the means of defence-^-a denial of the facts stated in the petition, or a statement of other facts in avoidance of those. It is necessary to a fair administration of justice that such certainty should prevail in pleading, as to put each party on his guard. The rule of law, which requires that judgments should be rendered super allega-ta et probata, is founded on common sense and principles of justice. The illegality of a contract, arising from transactions in fraudem l-'g s, may be taken advantage of by a plea in bar, a peremptory exception of the civil law, and should be regularly pleaded as that of doli mail or rei judicata;. Such pleas, of necessity, carry with them a suggestion of facts, in avoidance of those stated by the plaintiff and often require testimonial proof of their truth, which the opposite party may rebut. In an action grounded on an engagement, entered into with a view to contravene the general policy of the laws, if the plaintiff, by the evidence in support of his claim, should also shew the turpitude and illegality of the transaction, perhaps it would be the duty of the court, before whom the suit was instituted, immediately to dismiss it. But the present case, from any thing that appears on the record, is not thus circumstanced. It does not appear with * *■ t certainty by which of the parties, the witnesses were introduced, who testified to the confession of the plaintiff that the transaction was a smuggling one. - From the manner in which the testimony is arranged on the recofd, this confession, seems, in the first instance, to have been drawn from one of the plaintiff’s witnesses, by cross-examination, on the part of the defendant, and in the second, to have been proven by a witness of the latter.

It is true, that the maxim, Nemo allegans. suam turpitudinem est audiendus, appears to be opposed to any system of pleading, which would compel a defendant to alledge his own turpitude. Whether this rule be applicable only to plaintiffs, who call on courts of justice to enforce their base and illegal agreements, and ought not to be invoked against a defendant, is a question, which in the present case there is no necessity of determining. The civil law puts the exception of general illegality on the same footing with those of doli mail, or rei judicata, &⅜ ff. 44, 1, 3. No principle of jurisprudence exists to prevent a defendant from alltdging the turpitude of the plaintiff, and such allegation would answer all reasonable purpose s of the strictest rule of pleading, by putting the adversary on his guard : although it should afterwards appear that they were both equally base or immoral.

From tliis view of the case, the judgment of the parish court might be affirmed, without any reasoning, were it not that there are cross appeals. The plaintiff contends that the damages, assessed by the jury, are too small- As the contest between the parties is involved in some doubt and mystery, and as the verdict is not contrary to evidence, and the probable justice of the case*

It is ordered, adjudged and decreed, that the judgment be affirmed, and that each party pay bis own costs in this court.  