
    L. Hertz v. W. H. Wilder.
    Although a party may sometimes be permitted to allege and prove that the form of a legal contract has .been used to cover a corrupt or flagitious transaction, yet such an allegation puts the party who makes it in a position so questionable, that the judge is not only authorized, but obliged to sift with the greatest care the evidence adduced in its support, and only to give his credence when the evidence is so complete that it forces itself upon the conviction with the power of demonstration.
    from the Fourth District Court of New Orleans, Reynolds, J.
    
      H. D. Ogden, for plaintiff and appellant.
    
      Durant & Horner, curators ad hoc, for defendant.
   Buchanan, J.

This is a suit instituted upon five several promissory notes made by defendant in favor of plaintiff, at different dates, ranging from July 20th, 1852, to May 13th, 1854, and maturing respectively from January, 1853, to August, 1864. The suit was instituted by attachment on the 21st December, 1864, the defendant being then a fugitive from justice, having escaped from the custody of the marshal, after conviction of the crime of uttering forged land warrants, knowing them to be forged, in the Circuit Court of the United States holding session in New Orleans. The defence, put in by a curator, ad hoe, appointed b}' the Court, is want of consideration.

In support of this defence, the curator ad hoe of defendant has offered a certain document purporting to be signed by plaintiff, in the nature of a counter letter. This' document bears date the 26th September, 1864, and, after describing the five notes herein sued upon, in detail, proceeds to declare as follows : “ Which said notes have been this day delivered to me by the said Wilder, and for which no value or consideration has been by me given — -the first four of said notes having been anti-dated to correspond with certain old chocks in my possession, drawn on the days and 3rears above stated, for the amounts above stated; said checks being made payable to bearer on the house of Judson & Oo., and given at those times to some persons whom I cannot recollect, or drawn in the way of business. The above notes are given for a certain purpose, and I agree to return said notes to said Wilder or his agent after the termination of the proceedings now ponding in the United States Circuit Court for Louisiana, entitled “ The United States v. William H. Wilder and Philip Prendergast.” The evidence is very conflicting as to the genuineness oí the signature of plaintiff to this document. Three witnesses, Delgado, Armor, and Solomon, testify to an acquaintance with the handwriting of plaintiff, and that, in their opinion, the signature in question is his. On the other hand, four witnesses, Montross, Bartlett, Newman, and McOormielc, who profess to be well acquainted with plaintiff’s handwriting, declare their conviction that the signature to the document B. was not written by him. In this discrepancy of testimony, it would scarcely be safe to pronounce the document to be genuine, coming, as it does, from the possession of a convicted forger. The appellee now relies upon the testimony of a witness, who is the brother-in-law of defendant, to sustain the plea of want of consideration. This testimony consists of confidential communications made by Wilder to the witness, out of the presence of the plaintiff, and a conversation said to have taken place between plaintiff and defendant. As to Wilder’s declarations to the witness, out of plaintiff’s presence, a bill of exceptions has been reserved. And we are of opinion that they were improperly admitted in evidence. There remains the evidence given by this witness of a conversation said to have taken place between plaintiff and defendant on the evening previous to the trial of the latter in the United States Court. This portion of the witness’ deposition is as follows: “Witness was going home the evening before Wilder’s trial, and at the corner of Exchange Alloy and Customhouse street he met Wilder and Hertz conversing together. Deponent asked Wilder to go home, and accompanied him home. Witness heard L. Hertz say he would to-morrow come into court and swear to the amount of the notes which Wilder had given him, Hertz. Wilder was apparently pressing Hertz for a receipt of the notes. Hertz said it did not matter, as he would destroy them immediately after the trial. Wilder told Hurtz he had either lost or mislaid the receipt Hurtz had given him, and, in case of any accident either to Hertz or himself, ho would like to have a receipt. Deponent pressed Wilder to go home as it was getting late, aud they then separated, Hertz remarking that he would next morning be in court, and fulfil his promise.”

If this witness is to be believed, the plaintiff has admitted the existence of some such document as that which has been the subject of our preceding remarks. But we should not lose sight of the fact that Wilder is defending this case upon an allegation of his own criminality. Ho avers, in substance, that the notes sued upon were part of a scheme of fraud and perjury, concocted between himself and plaintiff, for the purpose of screening himself from a criminal prosecution which has terminated in a conviction. “Nemo allegaos turpi-tudinem suam audiendus est,” is good law, no less than sound morality. The maxim, “ex turpi causa non oritur actio,” is, however equally orthodox. And it may well be asked, how can the latter maxim receive a practical application unless the party defendant be sometimes allowed to allege and to prove his own turpitude? The only mode of solving the dilemma strikes us to be, that, although a regard to the purity of justice compels the admission of allegation and proof that the form of a legal contract has been used to cover or corrupt a flagi-tious transaction, yet such an allegation puts the party who makes it in a position so questionable, that the judge is not only authorized but obliged to sift with the greatest care the evidence adduced in its support, and only to give his credence when the evidence is so complete that it forces itself upon the conviction with all the power of demonstration. Now, it scorns to require explanation in what manner the notes of Wilder, in the hands of Hertz produced as a witness on the trial of Wilder, and the false testimony of Ilertz that Wilder was really indebted to him in the amount of those notes, could have benefited Wilder in the defence of a charge against him, at the suit of the United States, for having feloniously and knowingly uttered forged land warrants. The witness, Palmer, gives no satisfactory explanation on this point, neither does the record show anything that passed upon the trial of Wilder on that charge. It informs us, indeed, that Wilder was tried and convicted ; but whether Hertz gave any evidence at all on the trial, and if so, what bearing his evidence had on the case, we are not informed. Unaided by evidence, we have been unable to perceive any reasonable motive for the alleged fabrication of simulated notes, and the subornation of false testimony to prove them real.

On the whole, as we sustain the plaintiff’s bill of exceptions to testimony ; as the signature to document B has not been proved to our entire satisfaction ; and as we think it probable that further light may be thrown on this very singular case by the production of further evidence, we have thought it advisable to remand the cause for trial before a jury.

It is therefore adjudged and decreed, that the judgment of the Court below be reversed, and that the case be remanded for trial before a jury, and ip other respects to be proceeded in according to law : the appellee to pay costs of appeal.  