
    No. 1093.
    J. D. Weaver v. Theophilus Anfoux.
    Where a party, after having received the full benefit and advantage of a contract, comes into court and alleges his own turpitude, and invokes the law of morality, to relieve himself of ths execution of his part of the contract and by that means to enrich himself at the expense of the other party, he must adduce evidence so complete that it carries with it conviction with all the power of demonstration.
    The courts of this Stale will not give effect to an agreement entered into for an immoral or fraudulent purpose, but such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture.
    The evidence shows that defendant executed his promissory notes in favor of plaintiff, secured by mortgage on real estate, and received from plaintiff, as the consideration for the notes and mortgage, checks on the bank for the amount of the notes, less the interest, in the ordinary form, payable in no particular currency; and further that checks of the bank were either paid in bank notes or Confederate treasury notes. Defendant now seeks to avoid the payment of the notes on the ground that the consideration for which they were given was Confederate treasury notes: It«ld— That this evidence does not establish with the legal certainty required that the consideration was Confederate treasury notes.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.
    
      Hunt & Denegre, for plaintiff and appellee.
    
      Campbell, Spofford & Campbell, for defendant and appellant.
    
      Brief of plaintiff and appellee.
    
    
      * * * The rule in reference to this case, and the quantum of proof which it devolved on Anfoux to produce, in order to obtain the remedy he seeks, is thus Lid down by the Supreme Court: “Although a regard to the purity of justice compels the admission of allegations and proof 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 all the power of demonstration.” Hertz vs. Wilder, 10 An. 201.
    The same principle is enunciated by the Supreme Court in the case of Denton y. Irwin, 6 An. 320. The Court there say: “The appeal of the counsel for the defendants to this Court, that the action of the plaintiff cannot be maintained as originating ex turpi causa we do not feel ourselves at liberty to act upon. As we held in the case of Benton v. Wilcox, 2 An. 66, we will not give effect to an agreement entered into for an immoral and fraudulent purpose; but then such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture. When such a case is brought before a court of justice, the Court is bound from a sense of self-respect to withhold its sanction and dismiss the parties; but this is in the interest of public justice, and not in the interest of the party who seeks to profit by the acts of his adversary, of which he has been the participant.”
    And so in the recent case of Graves v. Hardesty, the Court said: “ The defendants offered a witness to prove that the consideration of the note was Confederate money * * he failed however to prove the consideration was Confederate money.' He stated that in the year 1864 greenback or United States money was also in circulation to some extent in that section of the country, and he thought the Confederate officers used about as much of it as they did of the Confederate money.” And the Court considered this testimony insufficient. 19 An. 186.
    And so again in the case of Clark and, Thieneman v. Norwood, the Court said: “ The testimony of the cashier and paying teller of the Citizens’ Bank is to the effect that at the time the check of the plaintiff in payment of the cotton was received, the bank paid Confederate notes or notes of the local banks, at the option of persons presenting checks for payment. This does not establish that payment was made in Confederate treasury notes. ” 19 An. 118.
    Conscious of the weakness of his ease in this important particular, the counsel for Anfoux sought to bolster it up on the new trial by the testimony of one Scott, who testifies to an admission on this subject in the course of a casual conversation between himself and Weaver, out of the presence of any third party. He says: “ After this suit was commenced I saw him one day; he told me he had taken out a seizure, and that Anfoux had taken out an injunction upon the ground that the consideration was Confederate money. He said: It is true it was Confederate money, but that could make no difference to Anfoux, as the greater portion of the money went to pay the previous mortgage and interest, which the previous holder was willing to take with the accrued interest, and that would consume a large amount of the $11,000.” Rec. p. 75.
    On cross-examination, this witness stated that Weaver had sued him and obtained judgment against him, and that Anfoux was one of his witnesses, although he had not testified in the matter.
    The Judge a quo did not take into account the testimony of this witness. Leaving out of view the bias under which he testified, and giving the fullest weight to his statements, it would be difficult for any unprejudiced mind to conclude that these statements constitute legal proof that the consideration of this mortgage was Confederate money.
    It is an elementary principle in the law of evidence, that the loose and careless admissions made by parties in casual conversations are the weakest of all evidence. 1 Greenl. $ 200; Hen. Dig. 503.
    What is said with-reference to the testimony of Scott, applies with equal force to that of Roubieu, who testified on the first trial to a similar declaration in conversation made by Weave?: to nun, Suplí declarations, even if made by Weaver, are in contradiction of tlie admitted facts, that Weaver gave the notary his checks for dollars and cents, in the usual form.
    2.The allegations of the petition for an injunction, and the evidence in support of them are insufficient to anthorize an injunction without security.
    Article 739 of the Code of Practice, provides that “ the debtor can only arrest the sale of the thing seized, by alleging some of the following reasons, to wit:
    1. That he has paid the debt for which he is sued.
    2. That it has been remitted by the creditor.
    3. That it has been extinguished by transaction, novation, or some other legal manner.
    4. That time has been granted to him forpayingthe debt, although this circumstance be not mentioned in the contract.
    5. That the act containing the privilege or mortgage is forged.
    6. That it was obtained by fraud, violence, fear, or some other unlawful means.
    7. That he has a liquidated account to plead in compensation to the debt claimed.
    8. And finally, that the action for the recovery of the debt is barred by prescription.”
    On the allegation under oath of any of these reasons, the Judge shall require no surety from the defendant who asks an injunction. O. P. 740.
    But where the debtor alleges other reasons than these, “the Judge shall not grant an injunction without requiring that the defendant shall give bond to the plaintiff with good security, to the amount of one-half more than the appraised value of the property seized.” O. P. 750.
    The petition of Anfoux is artfully framed, with a view to evade the obligation of giving security which the law imposed upon him. The petition alleges “ that the act of mortgage, upon which said order of seizure and sale has been sued out, was obtained by unlawful means,” thus employing the very language of Article 739 of the Code of Practice.
    Now, what is the meaning of these terms ? To obtain an act of mortgage by unlawful means, is to procure such an act by means of fraud, violence, fear, artifice or constraint. To obtain is “to get, to gain,'to procure.” “The word usually implies exertion to get possession, and in this, it differs from receive, which may or may not imply exertion. ” Web. Die., Yerbo, Obtain. Where an individual' has voluntarily and deliberately gone before a notary public and became a party to a notarial act, where no artifice or constraint is charged to have been employed to procure his participation in it, it is an abuse of language to say that such an act has been obtained or procured from him by the exertion of illegal means or influences. What unlawful means does the petition state or the evidence show were employed against Anfoux, in order to obtain this act of mortgage from him? None. What fraud, what violence, what fear, what stratagem led him to the office of Mr. Guyol, and induced him to borrow Weaver's money in order to discharge his own debts, to disencumber his property of a mortgage, and then to issue his promissory note for the reimbursement of the loan?
    The petition, after charging in general terms that the act of mortgage “ was obtained by unlawful means,” proceeds to particularize and explain how this was done. It charges that the loan was made in Confederate notes, and concludes with the allegation that the contract “was an unlawful contract, based upon a cause reprobated by law, which this Court cannot lend its aid to enforce. ” In other words, the petition charges that unlawful means were exerted against Anfoux, in order to procure the mortgage act from him, and to seduce him into signing it, because the consideration of the contract was an unlawful one ! This is clearly a non sequiiur; hut this is the logic of Anfoux. It is to say, that a notarial act, although voluntarily entered into by a party, was necessarily obtained by improper exertions employed against, him, because the consideration of the contract is illegal! It is to say that a want of consideration for a contract is equivalent to a want of free agency in making the writing evidencing such a contract.
    Thus the allegation that “the act of mortgage was obtained by unlawful means,” has been ingeniously used as a cloak for another, and a different defence. The true ground upon which Anfoux claims his injunction is the unlawful consideration of the contract, and not any unlawful means employed to obtain his participation in the notarial act. He comes into Court like a wolf in sheep’s clothing. He charges that this act of mortgage was obtained by unlawful means merely in order to enjoy immunity from giving bond; but he proceeds to state his real cause of a.ct’on, which would uot entitle him to an injunction withoutgivingbond. To obtain an injunction for the reason that the consideration of a contract is illegal, requires the giving of a bond; and a party is not permitted to evade this requirement of the law, by covering up his real reason under a false pretence.
    The authorities show that whenever an injunction has been obtained for want of consideration, fraud in the consideration, or failure in the consideration, the party has been compelled to give bond. In Dawson v. Duplantier, cited in the brief of counsel, an examination of the facts of the case shows that the injunction was granted upon security. 15 La. page 290.
    In Sowell y. Cox, 10 Rob. p. 69, also cited in the appellant’s brief, the injunction was granted upon security. In the case of Grenwell v. Roberts, 7 La. p. 65, the injunction was issued upon security. In Falehon v. Bouclierville, 1 Rob. 337, it does not appear from the report of the case that the injunction was issued without security. The same may be said of the case of Slidell v. Righior, 4 Rob. 58, also relied on by the appellant.
    In Gox y. McIntyre, 6 An. 470, it is not distinctly stated that the injunction issued without security. But, from a passage at the very end of the opinion of the Court, and to which the attention of the appellee’s counsel was called only after the argument of this case, it would appear that the injunction issued without security. The passage referred to would seem to indicate, however, that the Court instead of approving, reprobated the action of the lower Court, in enjoining the writ without security. The Court say: “ The District Court rendered full justice to the plaintiff; perha enjoined more of the claim against her than should have been enjoin ithout security.”
    The practice is believed to be general in cases like this, whether the injunction be sued out by an opposition or in a separate action, for the pe itioner to give bond under the requirements of the Code of Practice.
    There is a manifest propriety in permitting a defendant in a writ of seizure and sale to obtain an injunction without giving security in the eight cases enumerated in the Article 739 of the Code of Practice. In six out of these eight cases the injunction is sought for causes necessarily arising subsequent to the granting of the mortgage, and by which the debt has been extinguished, or its payment postponed. In the other two instances, the injunction is sought upon the ground that the act containing the mortgage is forged, or because the act was procured by means of. fraud, fear, violence, or the employment of other unlawful practices.
    In order to obtain an injunction in any one of these eigl t cases a party is required to swear to some substantive fact, which must be within his individual knovdedge. But when the allegation is that a “ contract is an unlawful one, based upon a cause reprobated by law,” the party swears not merely to a fact, but to a legal conclusion — the result of his own opinion as to the legal significance of a fact.
    In the eight cases mentioned in the Code, if the parly swears falsely, his falsehood may be readily exposed and his perjury promptly punished. But, on the other hand, if he swears that the consideration of his contract is unlawful, it requires an investigation of the law in order to establish the erroneousness of his legal inferences, and it would be impossible to punish him for pi 'jury, when his error comes to he exposed, and the lawfulness of the consideration to be finally determined.
    
      It may be asserted to be the general rule under our practice, that where a writ of injunction is issued in order to stop the wheels of justice, the party obtaining it is bound to secure his adversary by a bond, against the damages which he may sustain in case it has been wrongfully obtained. C. P. Art. 304; Act March 25th, 1831, seo 3; O. P. Art. 750.
    There are exceptions to this general rule. These exceptions are the eight enumerated in the Article 739, O. P. These are declared to be the “only ” reasons for which an injunction may be permitted to issue without surety. They are not to be extended, or enlarged by interpretation. If so, they cease to be the “only” causes for which injunctions may issue without security; and other causes maybe added to them ad libitum. Thus, the general rule of our practice would become abrogated, and the exception take its place.
    But the appellant’s counsel insist on adding at least one more reason to the eight embraced in Article 739 of the Code of Practice. They claim for this ninth reason the authority of Article 742, C. P., which provides, that if on being required summarily to prove ike fads (not legal inferences) alleged in his opposition, the party “ proves that the act on which the seizure was obtained is prescribed, or that the cause of it is void, or that the debt is paid, etc., the Judge shall revoke the order of seizure, and condemn the plaintiff to pay costs.” C. P. 741, 742.
    The argument is, that when the cause is void for any reason whatever, the party may obtain an injunction under this article.
    Now the Article 742, C. P., is in pari malerice with the Articles 739, 750, C. P., and by the well-settled rule of interpretation, all parts of the law are to be compared to ascertain the intention of the law-giver. However broad the expressions may be in the Article 742, yet, if, on examining the other provisions of the law, it clearly appear that those expressions are intend ml t.o be limited by other provisions, it is proper to restrain them accordingly.
    “it general words are used which import more than seems to have been within the purview of the law, or of other parts of the law, and those expressions can be restrained to those used in the same law, or inany other upon the same subject, they ought to be so restrained.” Smith’s Com. sec. 659, etib.
    The general words, “ if the defendant prove that the cause of action is void,” seem to import more than was within the purview of the law. They add other reasons to the “ only reasons ” enumerated in Article 789. If unrestrained by Article 739, they admit an injunction without security wherever the cause of action is alleged to be void for any reason whatsoever. But when restrained by Article 739, they admit an injunction without security, ‘ ‘ where the cause of action is void,” for any of the “only ” reasons which are within the purview of the law, and in no other cases.
    3. Anfoux, having confessed judgment, becomes plaintiff in the injunction, asking the affirmative aid of the Court to relieve him from an illegal contract, in which he was a voluntary participant. Such aid a Court cannot lend in such a case.
    When the creditor is in possession of an act importing a confession of judgment, in matters of privilege and mortgage, he may proceed against the debtor or his heirs, by causing the property subject to the privilege or mortgage to be seized and sold, on a simple petition, and without a previous citation of the debtor, in the manner laid down in the third paragraph, second section, third chapter of the first part of this Code. Code of Practice, Art. 734.
    When the hypothecated property is in the hands of the debtor, and when the creditor, besides his hypothecary right, has against his debtor a title importing a confession of judgment, he shall be entitled to have the hypothecated property seized immediately, and sold for the payment of his debt, etc. Code of Practice, Art. 63.
    Thus, on “ simple petition,” “ without previous citation,” the creditor is entitled to have the mortgaged “property seized immediately,” and sold for the payment of his debt.
    
      No exception, no answer, no defence of any nature is permitted the defendant. He is precluded by his own act from any and from all these. He has chosen to cut himself off from them.* He has confessed judgment.
    The law of Louisiana has created public officers to receive the contracts of parties, and to impart to them authenticity. Such contracts so received, pro luce between the parties the same effect as judgments rendered by legal tribunals.
    “ Dans la legislation actuelle, les notaires sont établis les magistrals et les ministres de la j urisdiction volontaire. 'Us exercent dans cette jurisdiction des fouctions absoiument semblables á celies attribuées aux juges, dans Tadministrabion de la jurisdiction contentiense. Dans les affaires litigieuses, portées devant les tribunaux, les juges déelarent l’íntention de la loi et en ordonnent 1’application au cas parbieulier, qui leur est sonmis. Dans l’acte que re^oitun notaire, cet offieier declare l’intentíon, la loi particulifere que se font les contractants qui paraissent devant lui. Les uus et les antres disent ce qui est devenu un droit, ceux-ci par la volonté particulifere des contractans ceux-lá par la volonté générale de la loi. Jus dicunt, d’ou vientle mot jurisdiction-” Loret, Recherches sulla Jurisdiction, p. 1.
    The act of mortgage in this case not only imports a confession of judgment, but is in totidem verbis such a confession in favor of the mortgagee or any subsequent holder of the obligation connected with it.
    “ "Where a party, in an authentic act, confesses the existence of a debt, and authorizes the creditor to enter up judgment without notice or delay, Courts have the power upon the exhibition of such an instrument, to carry into effect the agreement between the parties, in the same manner as if the parties were present, and confessing in open court.” Toledano vs. Relf, 7_A. R. 61.
    The position which Anfoux has placed himself in with reference to this mortgage note is, that of a party “present and confessing judgment in open court.”
    He cannot escape from this position. He cannot be permitted to undo at will what he has thus solemnly done.
    If he comes into Court, and seeks to enjoin the execution of the judgment thus confessed, he assumes the attitude of a plaintiff — an actor. His opposition takes the form of a petition. He assumes the attitude of a plaintiff seeking a legal remedy upon certain allegations which he makes. He asks to be extricated from the toils that he himself has helped to weave.
    What issue is now presented and under trial before this Court? Manifestly it is the issue tendered by Anfoux in the opposition, and joined by the motion to set aside the injunction. The question for this Court to decide is: Shall the injunction prayed for by Anfoux be perpetuated? Has he shown himself entitled to the remedy that he seeks?- Shall he receive the affirmative aid of the Court?
    Weaver, on the other hand, does not ask the aid of the Court to secure to him any right. He has already obtained all the aid he asked.
    Ttie order of the Court a qua, awarding him executory process, is final and complete. It issued upon the confession of his debtor.
    This order, although not in some sense a judgment in his favor, is yet to be regarded in the light of a judgment in this: That it is subject to revision on appeal. It has not been appealed from: and he comes before the Court only to resist the application of Anfoux for the affirmative aid of the Court.
    Suppose that instead of adopting the solemn form of an authentic act to clothe his confession of judgment, Anfoux had seen fit to be present and confess judgment in open court — could he be permitted to come into court afterwards, and seek to enjoin the judgment thus confessed, without assuming the character of one asking the active interposition of the Court in his behalf ? Suppose the confession of judgment were contained in an unauthentic writing, signed by him in the form usually employed in our Courts in such cases. Upon the proof of such a eonfes-' sion before a Court of competent jurisdiction, judgment would be rendered against liim. Would lie not, if he ai'terwai ,s sought to enjoin a judgment thus rendered, be still asking the affirmative aid of the Court to shield him from the judgment thus confessed. Is his position improved, or in any way altered, from the fact that his confession is clothed in the more solemn form of an authentic act ? The confession of judgment in such an act is at least as full and conclusive against him as though it had been •made orally, in open court, or by means of a private writing signed by him. In every instance, it is his own confession of judgment against himself; and in asking to be relieved from it he becomes the plaintiff or actor; whilst his judgment creditor is forced into the position of the defendant or reus, resisting his demand.
    Now, the ground on which Anfoux asks this Court to enjoin the writ of seizure in this case is, that the consideration of the obligation on which he has confessed judgment “is unlawful, and based upon .a cause reprobated bylaw.” Can the Court grant him its aid ? Let the authorities answer this question.
    “ Courts of equity will not grant affirmative aid to a participant in such a transaction, either by canceling what is executed or enforcing what is executory. Nor will they cooperate with a party in his efforts to secure any of the fruits of it, though as between him and his confederates he wiil not be dispossessed. The reason is, that courts do not sit to “ extricate rogues from their toils,” and sound policy requires that they should be left to the hazards of their devices, and at the mercy of each other. ” Schemerhorn vs. Taiman, 4 Hernán, p. 102, and the authorities cited in the brief of N. Hill, of counsel.
    “The complainant alleges that the obligation to which he had voluntarily become a party, was intentionally made in fraud of the law, and for this reason he prays to be relieved from its fulfilment. This prayer, too, is preferred to a court of conscience, to a court which touches nothing that is impure. The condign and appropriate answer to such a prayer from such a tribunal is this: That, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto. You cannot be admitted to plead your own demerits, precisely, thtr-f'ore, in the condition in which you have placed-yourself, in that position we must leave you.” This was the case where, after judgment recovered against him, the complainant had executed a forthcoming bond, which the Court deemed “equivalent in effect to a confession of judgment.” Oeach’s Adm’r. vs. Sims, 5 How. 204.
    “Where an illegal contract has been partially performed, and the party •who has received the benefit of such performance gives a judgment for the value, equity will not relieve him from the judgment, allhough the amount could not have been recovered at law, on account of the illegality.” Hilliard on Injunctions, p. 181, sec. 48. 1 Story’s Eq. Jur., see. 296 a ; State vs. Ress, 12 An. 166.
    In Orchard v. Hughes, 1 Wallace, p. 74: “A suit had been brought by Hughes against Orchard, the appellant, to foreclose a mortgage. Oi chard set up by way of answer, thata part of the consideration of the nioitgage consisted of the bills of the Bank of Tekama, of the territory of Ne raska; that th's bank, though chartered by the Legislature of that t >m ory; had never been approved of by Congress, as was necessary that it should be, in order to be*h gaily chartered; that the bank was never organized; that it was a device to deceive the public; that its notes were fraudulently issued and put in circulation without the authority of law, and were of no validity or value whatever. But the auswer showed that the bills were current, aud in circulation at the time they were received by him, and did not state in any sufficient way that they had proved worthless in Orchard’s hands, or that they had ever been tendered back either to or by him.” The Court said “the fatal defect in both the answer aud proof is, that admitting every allegation against the legality of the bank charter, and of the worthlessness of the paper issued by the bank, Orchard, the maker pf the note and oi the mortgage, hag not been the sufferer, The bills constituting a portion of the consideration of the note he used in payment of his debts while they were current in the community, and he has not taken them back, either voluntarily assuming that he might have done so, and set up the fact as a defence to the note; nor has he been subjected to the repayment of the debts he discharged by the use of them; and even were he permitted to succeed in reducing the present demand by rebating the bank-bills received by him, it does not appear that he is under any obligation to account for that amount to the creditor or creditors to whom he paid them. The defendant, therefore, is not in a condition to test the several questions raised and discussed on the argument in respect to the power of the Legislature to charter the bank or the conduct of the parties concerned in its organization, or in keeping up its credit for the purpose of imposing upon and defrauding the community by means of the circulation of its paper. The decree, therefore, of the Court below was right, and should be affirmed.”
    In Emerson v. Lee, 18 An. 135, this Court upon principles of equity identical with those enunciated by the Supreme Court of the United States in the case of Orchard v. Hughes, 1 Wallace, p. 71, said: “Plaintiff’s consent to accept Confederate notes was forced, produced by violence; and had he shown what he alleged, that he never used the notes given to him by defendant, we would not hesitate to give him relief. We think that in order to recover, it was essential for him not only to allege, but to prove that he retained and tendered the identical notes received by him; but he has failed to make the necessary proof, which it appears he might have done, as the payment was made to or in the presence of his broker. To permit him to offer other than the very notes given to him would indirectly at least recognize in them the quality of currency. * * * * This is a recognition which this Court is not prepared to make. And besides, there is proof in the record that Confederate notes at the time had some value, (however this value may be imparted) and it would afford plaintiff the opportunity to barter or make merchandise of those received by him, and afterwards substitute or replace them at a small cost, and thus actually realize the amount claimed in addition to a recover from defendant.”
    
      Brief of defendant and appellant.
    
    * * * The first inquiry is as to the matter of fact. Was this a loan payable in Confederate notes? Upon this we think there cannot be a doubt. The contract was made between Anfoux and Weaver. Anfoux has sworn that this was the contract in his opposition to the rule.
    Guyol, the notary, says: That a few days before the execution of the mortgage, Weaver deposited his checks with him to complete the transaction, ami that he deposited the checks, and afterwards closed the transaction by drawing similar checks. What did he deposit? His deposits were made in banks that paid out only what they received. They had made special contracts with their depositors. Generally, they paid out currency, and Guyol understood these checks to beso drawn; that if Mr. Anl'oux “had demanded payment of his balance in gold or silver, or even city bank-notes, he could not have paid him in other funds than those that Weaver gave him.” Two witnesses swear to Weaver’s account of the contract.
    Weaver, claiming exorbitant interest for delay, explains to Roubieuthe whole matter. It was not his usage to lend money; he could get more by other dealings; but he desired to get rid of his Confederate trash ! The times had changed, and now he must do better, and get all that was in his power ! This is perfectly consistent with what is said by Guyol. He does not draw checks upon the specie-paying bank, bub on one of those that did not pay out its own notes, except in small parcels to a friend, but which took care to withhold them from circulation.
    Scott testifies that while the suit was pending, and when, therefore, we may suppose that Weaver was guarded, he admitted that the statement of Anfoux, in respect to the consideration, was true, and stated, in his answer to it, that Anfoux had made a profitable use of the money,
    
      This testimony, in connection with that of the Messrs. Guyols, seems to be conclusive on the matter of fact.
    The ordinary checks on the banks of New Orleans, except the Southern Bank, were payable in Confederate money; they would not be paid in other funds, except specially deposited and drawn for.
    There was no special deposit in this case, and Weaver declares that his motive for making the loan was to employ his Confederate money; that he would not have made the loan otherwise; that it was not his habit to make such loans; that he desired to get rid of what he considered “ trash.”
    Another witness testifies to his admission of the same fact.
    Weaver himself proves nothing on the subject. He might have produced his bank-book checks, and their payment from funds specially deposited, but he does nothing of the kind.
    The Court is entitled to exact explanations from him, and he makes none.
    The conclusion is irresistible, that this was a mortgage for a loan to Anfoux, nominally, of $11,000, as specified in his mortgage, butof $11,000 as represented by the Confederate treasury notes for that sum.
    The deposit of the checks with the notary, and the payment out of his checks to the different persons who were to receive money, was a mercantile mode of facilitating the completion of the transaction — a mere form for executing the prior agreement. The check is “ always supposed to be drawn upon a previous deposit of funds, and on an absolute appropriation of so much money in the hands of the bank or bankers to the holder of the cheek to remain there until called for, and cannot, therefore, bo after-wards withdrawn by the owner. ” Story on Promissory Notes, sec. 487.
    It is proved in this case that the banks and depositors had agreed as to the funds that were to be paid out by the former on the checks of the latter. Mr. Guyol, in his first examination, states this: “The holder could get no gold, silver or bank-notes but as deposited by the drawer.” His brother, the officer of the Canal Bank, states the same fact.
    Now then, Anfoux and Weaver had agreed on the money to be paid, and Weaver places the checks to meet his engagements; the notary places the cheeks to his credit, and draws upon the funds so deposited. The funds of Weaver were the Confederate “ trash ” he was anxious to part with, and which Anfoux had agreed to take.
    The checks were used to accomplish the arrangement. The notary owed nothing to Anfoux; he was a mere conduit of Weaver’s money to him upon the execution of the mortgage. Anfoux had agreed to convey free of prior encumbrances, and as a part of the transaction he applied a portion of the money in that payment. In applying that part of Weaver’s deposit, Guyol was Anfoux’s agent. Weaver was no party to that contract of payment. The mortgage paid was not transferred but extinguished; it was the payment of Anfoux to his creditor.
    The loan of Weaver is given for the note of Anfoux, and his mortgage for $11,000, paid to him in Confederate money, as before stated, upon the evidence in the record. If the notary had gone to the bank and drawn the Confederate money, and paid it to Anfoux, it is not denied that the contract would have been legal. How is the consideration altered, when the bank holds the Confederate money, and delivers that and nothing else ? They had made special contracts with every depositor, and that contract was binding. Weaver could have drawn nothing else himself, and how could his check in favor of another be more operative ? These parties both agree in the fact that the consideration was Confederate money.
    When this case was brought, there was some doubt as to the illegality of such a consideration. The opponent produced a note made by the Confederate States and the acts of the Confederate States Congress, to show their exact purpose. Those acts show that the notes issued by the Confederate government were only a form for borrowing money to carry on the war against the United States.
    
      Tlie authorities show that contracts made by the subject or citizen of a neutral power, cannot deal in the securities of an unrecognized government at war with a government with which the neutral power is at peace and on terms of amity. The cases of Thompson v. Bowles, 2 Simon, 194; Kennett v. Chambers, 14 How., S. C. R, 38; 41 Bingham, 315; 2 Carr & Payne, 223, show this, and the cases are equally clear that such a transaction as this cannot be supported in the Courts of the United States, when the contract was for the purchase and accrediting of notes issued by a government organized for the purpose of carrying on hostilities against the United States, and which the United States treated as a rebel government. Great Britain treated the acts of the colonies, during the revolutionary war, as having no obligation or force, and would give to them no consideration. 3 Durn and E. 401.
    The decisions of the Courts of Louisiana are sanctioned by principle and authority. (Schmidt v. Barker, 17 A. 201, and other cases on this question.) Nor does it make any difference what use was made of the money by one of the parties, or could have been made of it by the other of the parties, or whether the money was of any value. The Court does not make any inquiry on that subject. If it appears that the contractwas ex turpi causa, or against a positive law, or in violation of a public duty, the Courts refuse to lend any aid in its enforcement. Nor can the contract be divided. "Where a sale was made of an article, the payment for which was to be made in good money in part, and counterfeit money for the other part, the whole contract was declared to be illegal, and no part of the price could be recovered. Alexander vs. Owen, 1 Durn and E. 227; Eitson vs. Himes, 5 Barr, R. 452; 2 B. and Adol. 912; 5 Oowen, 253; 1 Hill, N. 1. R. 34; 2 Hill, 456; 2 Camp 147.
    2d. The next question arising on the pleading is, whether it was competent for us to interpose this proceeding. It was contended that we were plaintiffs, seeking to enforce a plea of illegality, and that the Court would lend us no aid.
    On the contrary, we insisted that Weaver was endeavoring to obtain relief upon a contract tainted with illegality, and that the defendant was in a condition to avail himself of the maxim : “potior est conditio defendentis. ”
    
    The executory proceeding is a summary j>roeeeding, to obtain execution upon a favored class of securities. The order upon the petition is not a judgment, and possesses none of its features. It decides no issue, and gives no right beyond the notarial act, by any adjudication. 1 Hen. D. 651, 53, 5.
    When opposition is made, and there is contestation, then the act only imports a contract, and maybe avoided in the same manner as other contracts. The Articles of the Code of Practice declare this: The 739th Article mentions a number of cases; nearly all that affect a contract, whether in the making, the evidencing or the extinguishment that can be conceived; and in the 742d Article it makes a summary of these, and decides that if the action be extended or prescribed, or the cause is void, or the debt is paid, remitted or extinguished, the Judge shall revoke the seizure.
    This point was decided by the Supreme Court, in the case of Rowlet v. Shepherd, 41 La. R. 86. , ,
    The Court decided that the injunction obtained by Shepherd to the executory process of seizure, was to be regarded as an opposition. The Court says: “ The 741st Article provides that the plaintiff against whom the injunction has been obtained, may compel the defendant to prove, in a summary manner before the Judge, the truth of the facts alleged in his opposition. This enactment shows very clearly, that the Legislature considers the parties in such cases in quite a different character from what they would be if the party obtaining the injunction was plaintiff. The Judge, therefore, committed no error prejudicial to the plaintiff, when he gave him the same right and the same opportunity of maintaining his injunction, as he would have had, if the objections to the order of seizure and sale had been regularly and formerly presented as an opposition.”
    In the ease at bar, the objections are made by opposition in writing, in strict conformity to the Articles of the Code of Practice. Does the Code authorize this opposition V The allegations of the opposition are, that the act was obtained by unlawful means, and that the cause of the act is null. The Civil Code (Articles 1887, 1889) declares “ an obligation without a cause, or with a false and unlawful cause, to have no effect. The cause is illicit when it is forbidden by law, when it is contrary to moral conduct or to public order. ” ‘
    This is the precise allegation in the opposition, and however such a contract may be made, the means are unlawful.
    In Dawson v. Duplanlier, 15 La. 290, the ground of opposition was a failure upon the part of the plaintiff to fulfill his portion of the contract, whereby he had disabled himself from proceeding on his mortgage.
    In Falcon v. BoucherviUe, 1 Rob. 837, the opposition was founded upon the entire want of consideration. The plaintiff objected that no such evidence could be made, but the Court ruled otherwise.
    In Slidell v. Righlor, 4 Rob. 39, the opposition was made on the ground of fraud in the consideration of the contract.
    In Sowell v. Gox, 10 Rob. 69, a wife claimed that the contract was illegal, because she had bound herself with her husband. The Court intimated that this was a proper ground of opposition under the 739th Article of the Code of Practice as unlawful means, but it was not necessary to put the decision on that ground, as thero was an injunction under the Articles 296 and following.
    In Gox v. McIntyre, 6 An. 470, the seizure was opposed on the ground of usury. The Court sustained the process, and determined that the amount the defendant had not received might be deducted from the mortgage, but that interest that had been paid could not be recovered back.
    This was a simple case of illegality in the consideration. To the extent of the usury reserved, the contract was null. No question was made as to the regularity of the proceedings for that cause.
    In Zuñís v. Comen, 10 A. 433, the question here arose, as, in Sowell v. Gox, (supra) whether a married woman could enjoin an executory proceeding upon an authentic act. The cases are cited in the opinion.
    In one of the opinions it is stated “the true doctrine is, that where the authentic acts bear intrinsic evidence that the wife has exceeded her powers, the Judge should not issue an order of seizure and sale; but where they do not bear such evidence the order should be issued, and the wife left to her remedy, like other defendants in executory process, by injunction and affidavit.” C. P. and several cases cited.
    The only reason is, that where the cause of the action is void, it may be used as a ground of opposition. It was not lawful for a wife to bind herself with her husband,-except in particular cases, and the authorities show that she may allege and prove that the particular act was not binding according to law, in a case-of seizure.
    The cases cited show that want of consideration, fraud in the consideration, failure in the consideration, illegality in the consideration, want of capacity to contract, are all “unlawful means ” which furnish grounds of opposition. An illegal cause annuls the contract. There can be no cause more fatal to its execution through a court of justice. The Courts repudiate all intercourse with such contracts. The Supreme Court of the United States, 2 Peters, 527 and 538, say: “Courts are instituted to carry into effect the laws of a country, how can they then become auxiliary to the consummation of violations of law. * * * There can be no civil right where there can be no legal remedy; and there can be no legal remedy for that which is itself illegal. ”
    
    If the argument of the plaintiff were true, then all illegal contracts which assume the form of notarial acts, would be carried into execution by the courts.
    Their argument is that the author of such an act, when it is the ground of an executory process, cannot be resisted by opposition, but only by an original suit, in which he is a plaintiff, and in which he impeaches the act, and he may apply for an injunction. But they add, that being the plaintiff, the Court will not listen to him, as he alleges his own turpitude, and the Court leaves him were it finds him. Thus the holder of such an act escapes inquiry, and enjoys the full benefit of the severe process of the Court to enforce it.
    The statement of the result shows that it cannot be true.
    The executory process comes to us from the Spanish law. In Gxrlie v. Coquet, 3 Martin, N. S. 198, Judge Porter says: “So little have our Legislature interfered with this mode of proceeding that it seems to depend exclusively on the ancient laws of the country.” The Code of Practice embodies the Spanish regulations on the subject, with hardly any change.
    In the Eebvero Novísimo, B. 3, tit. 3d, ch. 5, ¡¡ 21: “La exception de nulidad del contrato, sentencia o instrumento en cuya virtud se pidió la ejucion,” is mentioned asa proper ground of opposition; “ pdrqne el que es nulo no debe ejecutarse.” The same will be found in Escriche’s ivork, under this title.
    The Judge below decided the case upon the testimony adduced, and therefore it may be assumed that this ground of objection was not in his opinion well taken. It is perhaps doubtful whether it can be raised in this Court.
   Labauvb, J.

The plaintiff obtained an order of seizure and sale upon a promissory note of the defendant, dated February 18th, 1862, for $11,000, with interest, and secured by a mortgage given by the defendant upon city property.

The defendant enjoined the sale upon the grounds that the mortgage was obtained by unlawful means, alleging that Weaver being possessed of “ Confederate notes,” issued by the Confederate States, then in insurrection, and payable as such notes were, after the termination of the existing rebellion, induced the defendant to take them, and to grant the mortgage, and to give the note and mortgage as security therefor; and that plaintiff gave defendant time for one year, ending the 18th February, 1867, to pay the note.

The plaintiff obtained a rule to set aside the injunction, upon the grounds:

1. That the first ground is not sufficient to sustain the application.

2. That the allegations of the opposition were untrue.

3. That the second ground was false, and that there was no such agreement.

The Court, after hearing the evidence, dissolved the injunction, and Thoophilus Anfoux appealed.

At the time of executing the act of mortgage by Anfoux in favor of Weaver, there existed a prior mortgage upon the property to secure a debt due by Anfoux to Ledoux, amounting in principal and interest to $8,700, evidenced by a note, of $8,000, which was held by Sosthene Armant, who appeared and intervened in the act of mortgage executed in favor of Weaver, and declared to have received payment in full of said note on that day, and cancelled the mortgage.

The first and principal question in this case is, whether or not the consideration of the note and mortgage sued upon, was treasury notes of the so-called Confederate States.

When a man, after having received the whole benefit and advantage of a contract, comes in Court -with unclean hands, and alleges his own turpitude, and invokes the law of morality, to relieve himself of the execution of his part of the contract, and by that means to enrich himself at the expense of the other party, he must adduce evidence so complete that it carries with it conviction with all the power of demonstration.

In Denton v. Erwin, 6 A. 320, this Court, by its organ, Judge Eustis, said:

“ We will not give effect to an agreement entered into for an immoral and fraudulent purpose; but then such fraudulent and immoral purpose must be clearly made out, and not left to surmise or conjecture. When such a case is brought before a court of justice, the court is bound, from ásense of self-respect, to withhold its sanction and dismiss the parties; but this is in the interest of public justice, and not in the interest of the party who seeks to profit by the acts of his adversary, of which he has been the participant.”

The same doctrine is followed up in Hertz v. Wilder, 10 A. 201, when this Court said:

Although a due regard to the purity of justice compels the admission of allegations and proof that the form of a legal contract has been used to cover or corrupt a 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 all the power of demonstration.”

We will now proceed to examine the evidence, and see if Anfoux has brought his case within the above doctrine, which we fully approve and adopt, notwithstanding the remark of the distinguished counsel of Anfoux in their brief, that it is unsound and in conflict with the first principles of evidence.

In the first place, there is nothing in the evidence, showing there was ever a word said about Confederate money, prior to, at the time of, or subsequent to, the passing of the act of mortgage and execution of the note sued upon.

In the second place, as regards the payment of the money—

Theodore Guyol says:

“I was a notary public in this city in 1862. The act of mortgage from Anfoux to Weaver is involved in this suit. I recognize the act shown to me. The sum of money, $11,000, less the interest, was paid me by Weaver in a check. I deposited the check to my own credit in bank; I paid $8,700, I think, to Mr. Ledoux, through his agent, Mr. Sosthene Armant, in settlement of prior mortgage; the balance I paid in a cheek, which I gave to Mr. Anfoux; I am not able to say on what bank that check was; I kept an account in the Canal, Citizens, and State Banks; think the check was on the Canal Bank; I have been for a great many years a notary public — since 1845; sums like these, I always pay in checks. I deposited the whole in bank to my credit, and then checked out to each party, as in this instance. ”

“ This act shown contains the exact agreement between the parties. I could not find the checks I spoke of. The only cheek I find is the Ledoux check on the Canal Bank, and which is the exact amount of the Ledoux mortgage.”

“I did not look for the check for the balance paid to Anfoux. Weaver deposited a portion of the money with me three or four days before he deposited the balance, on the 18th February. My checks, which were drawn on bank, were payable in currency — Confederate funds. On the 19th of September, 1861, there was an agreement entered into between the bank and its depositors, that from and after that date all checks were to be paid in the same currency as was deposited.. At that time the Confederate money was currency; sometimes the banks as a favor would give in payment a few bank-notes. Weaver’s checks were ordinary checks, payable in the same currency as my checks were. If Dr. Anfoux had demanded payment of his balance in gold or silver, or even city banknotes, I could not have paid him in other funds, but in such as Mr. Weaver gave me.”

“ Checks called for no particular currency; they were ordinary checks for dollars and cents.”

On a further examination, on a new trial, he says:

“ The money which the act of mortgage calls for, was paid by Weaver in check on the bank, and the money paid by me to Anfoux was also by check on bank; the checks were in the ordinary form, calling for no particular currency.”

“These checks were deposited with me before the date of the act of mortgage. One check was delivered, I think, about eight or ten days before the signing of the act; another check was delivered a few days after the first, and the third, probably on the day of the signing of the act.”

“ I did with those checks what I always do; about three o’clock I deposited them in bank. In this matter I was acting as the notary; indeed, I was the agent of both parties. This was an ordinary mortgage ; generally the party loaning money deposits the money or check with the notary, so that if he should not be present when the act is completed, the notary will hand over the money to the other party. In my last examination, I said that I gave my check, and so I say now. ”

“The money the banks were paying at that time could have been drawn on that check — that was Confederate money; though, as I stated in my first examination, I got bank-notes when I asked for them; I considered that was a favor done to me.”

Guyol’s testimony, which we have thought proper to copy in full, and upon which turns the case, shows that Weaver, before the passing of the act, deposited in his hands $11,000 in checks in the ordinary form, calling for dollars and cents on some bank not named; that Guyol, the notary, deposited the checks to his own credit in bank; that after the passing of the act he gave a check on Canal Bank for $8,700, to pay the prior mortgage of Ledoux, and for the balance he delivered another check to Mr. Anfoux, and he cannot say on what bank, having accounts in the Citizens’ Bank, Canal Bank and State Bank; that the checks drawn by Weaver as well as those drawn by Guyol, called for no particular currency; they were ordinary checks for dollars and cents; that on the 19th September, 1861, there was an agreement entered into between the bank, which is not named, and its depositors, that thereafter all checks were to be paid in same currency as was deposited; but sometimes the bank would give in payment a few bank-notes.

So far, there is nothing in this testimony establishing that one dollar has been paid in Confederate money.

But this witness, Guy ol, goes on and says: “At that time the Confederate money was currency. Weaver’s checks were ordinary checks, payable in the same currency as my checks were, and if Anfoux had demanded payment of his balance in gold or silver, or even city bank notes, I could not have paid him in other funds, but in such as Mr. Weaver gave me. ”

But all this part of the testimony, in regard to what was currency, and in what funds the checks were payable, expresses only the opinion of tho witness, and his incapacity to pay Anfoux in gold or silver, or even bank notes, does not destroy the substantial tenor of the witness’ and Weaver’s checks, which were payable on their face in no particular currency, but in dollars and cents, and Anfoux was not bound to take anything else, and he could have come back on the drawer for good money.

Nothing shows here that any part of these checks has been paid in Confederate money; to believe so it would bo surmising and conjecturing, when the law requires evidence so complete that it carries with it conviction upon the mind of the Court. Can we say, or can any one say, that Confederate money was paid on those checks? We cannot.

But it is contended that Weaver admitted in two different conversations, one with Reubieu, the other with one Scott, and it does not appear that Anfoux was present, that the mortgage had been given for Confederate money. This is the weakest species of evidence. 1 L. 285. 9 L. 562. 11 L. 139. 19 L. 547. 5 R. 330. 7 R. 112, 114. 8 A. 307. 9 A. 494.

The District Judge who heard the witnesses, paid no attention to this evidence, and in fact made no allowance to it; he must have had good reason for not doing so. If this admission was made, it was inconsiderate, for the evidence informs us that Anfoux actually received §8,700, in his own mortgage note held by Ledoux, to whose agent, Guyol, gave a check for its amount; Anfoux then received the §11,000, in his note for §8,700, and a check for §2,300.

We are of opinion that Anfoux failed to make out his caso.

The judgment is affirmed, with costs.

Rehearing refused.  