text:
    No. 1279.
    Yale & Bowling in Liquidation vs. Bond & Williams. Opposition of Gilkeson-Sloss Commission Company.
    In case a judgment creditor causes property standing in the name of another to be seized and advertised for sale as that of his judgment debtor, he undertakes the burden of proving the title of such third person to be a simulation.
    But if such third person’s title emanates from the judgment debtor, who is suffered to retain actual possession, under a precarious title, there is reason to presume the sale is simulated, and the burden of proof is on such purchaser to show that the transaction was in good faith and establish the reality of the sale.
    In this latter event the burden of proof is sufficiently discharged by the production of a judicial title supported by confirmatory and corroborating circumstances of contemporaneous date.
    APPEAL from the Fifth District Court, Parish of Morehouse. Richardson, J.

      Boatner & Lamhin for Plaintiffs and Appellants.

      Newton & Cason and Ellis & Hall for Third Opponents and Appellees :
    In an opposition by a third person claiming property seized, the only issue raised by him is the fact of ownership. 12 An. 341; 15 An. 136.
    The only question that can be raised by a party when enjoined, who has caused a direct seizure of certain property in the hands of a third person, is simulation of the title by which it is held. A real title, however fraudulent, can not be thus collaterally attacked. It must be previously set aside and annulled by a direct action before a seizure can be legally effected. 5 M. N. S. 361; 30 An. 373; 31 An. 862; 38 An. 248.

      On questions of fact the Supreme Court will not disturb the judgment of the lower court — unless manifestly unjust and erroneous.
    A strong case made out by plaintiff must be overcome by defendant. This can not be done by conflicting evidence tending to show fraud or simulation. 33 An. 801; 34 An. 310.
    When plaintiff alleges ownership and the title by which the same was acquired, simulation must be specially pleaded by the defendent on whom devolves the burden of proving it. 7 H. 221; 1 An. 262; 2 An. 354; 3 An. 325; 32 An. 1132.
    There are two ways by which a title to specific property can be attacked on the ground of simulation. 1. By a direct action “en declaration de simulation.” 2. By a direct seizure. . Between the two there is no material difference. The object is the same in both.
    A test as to the correct application of the exception of res adjudícala” is by inquiry as to what was litigated and adjudicated in the prior case, and whether the same matters and questions are again agitated between the same parties in the same capacity. Bxceptio rei judicata obstat quoties inter easdem personas eadem qucestio revocatm' vel alio genere judicii. C. C. 2286; 19 L. 325; 23 An. 619; 109 N. Y. 202; 24 Neb. 643.
    It matters not whether by petition, exception, intervention or rule the same question has arisen between the same parties, the exception of “res adjudAcata” bars another contest over it.' 30 An. 521; 31 An. 468; 35 An. 554.
    The burden is on defendant to prove special defences alleged by him.
   The opinion of the court was delivered by

Watkins, J.

This is a third opposition, coupled with an injunction, restraining sale of certain property that was seized by plaintiffs in execution, as that of defendants’ as their judgment debtors, third opponents setting up title thereto and claiming ownership.

On the trial there was judgment' in favor of third opponents, decreeing them to be the owners of the property seized, and disregarding the other demands, and the seizing creditors have appealed.

The averments of opponents’ petition are, in substance, that the creditors of Bond & Williams, under a judgment for about §2500, caused a certain stock of goods and merchandise to be seized as their property. That same was situated in the town of Bonita, in a storehouse wherein the defendants had carried on a general mercantile business during the .year 1891, and is well worth the sum of §4000. That said stock of goods is their property, and was in their possession as such at date of seizure, to the knowledge of the seizing creditors, they having acquired same at a judicial sale made on the 2d of January, 1892, under an order of court made in sundry attachment suits against the defendants, Bond & Williams. That they subsequently engaged Bond & Williams as their agents to take charge of said btock of goods and merchandise, and gave them a special procuration to that effect. That under said mandate they went into possession for the plaintiffs after the sale, and continued in the charge and management thereof up to the time of the seizure of Yale & Bowling, from time to time replenishing the stock, as occasion required.

Further appropriate allegation is made, as justifying the issuance of an injunction and as entitling them to damages.

The answer of the seizing creditors is, that the pretended agency of the defendants, Bond & Williams, is a fraudulent simulation, intended to screen their property from the pursuit of their creditors, they being notoriously insolvent at the date of said alleged procuration, and the real and actual owners of the property seized.

In the alternative they allege “ that if, at the commencement of the business, it was the intention to conduct it as that of third opponents, such intention was abandoned and was treated by third 'opponents themselves as the property and business of defendants.”

Third opponents urge a plea of res adjudicata against the charge of simulation in the answer, founded upon the issues raised by Yale & Bowling, in Liquidation, in the suit of Gilkeson-Sloss Commission Company vs. Bond & Williams, Yale & Bowling, in Liquidation, and, A. Baldwin & Co., Limited, Intervenors, 44 An. 841, and the judgment therein rendered, wherein the validity of same issues are alleged-to have been judicially determined.

It will thus appear that the sole question for our determination is-simulation vel non — the burden of proof resting on the seizing creditors.

There is no force in the plea of res judicata. The suit and judgment on which the plea is predicated was an ordinary attachment suit in which Yale & Bowling, in Liquidation, intervened and resisted the attachment of the property of Bond & Williams, as the common debtors of both parties, on several grounds, and amongst the number that plaintiffs’ demand was fictitious, and that the attachment was-obtained by consent of the defendants; and that plaintiffs’ purchase of the claim of the Monroe banks against the defendants was null and void.

It is quite true that in passing upon the issues thus raised in that case we employed the following language, to-wit:

“ From a careful examination of the record we are of opinion that intervenors have failed to prove that plaintiffs and defendants were guilty of fraud and collusion in issuing attachments against the -defendants. The plaintiffs purchased the property under seizure, and agreed to cultivate thejplantations and conduct the commercial business in their own names, at $75 per month each; when plaintiffs, from the profits of the business, realized the debt, they agreed to restore the property and business to defendants. The necessities of the creditor and debtor would naturally point to this arrangement.”

As is justly observed by the counsel of Yale & Bowling, the foregoing are merely the reasons that were assigned by the court for its judgment rejecting the demands as third opponents and for sustaining the plaintiff’s attachment. The title of the plaintiff, as purchaser of the defendants’ property pendente lite, was not at issue therein, though it was undoubtedly a factor in the conclusion reached by the court; and consequently, same was not directly passed upon, and the judgment thus rendered constitutes no bar to this action — notwithstanding it was this purchase and agency that constituted one of the • grounds of attack made upon these proceedings.

In so far as the case of the plaintiffs in injunction are concerned, it is just about as it is stated in'their petition, and as announced in the extract we have quoted from the 44th Annual — so far as the face of the papers is concerned. For0it appears that, upon application of some of the attaching creditors, the stock of goods in dispute, as well as other properties attached, was advertised and sold under an order of court pendente lite, to prevent a loss being sustained by deterioration and waste; and, at the sale thus made, plaintiffs in attachment become the adjudicatees; and the proceeds of sale were distributed ratably and according to the respective privileges of the attaching creditors. The purchasers being creditors for a large amount, and entertaining doubt of collecting their claim, employed their debtors, Bond & Williams, as their agents, as alleged in petition, and turned the stock of goods over to them, as stated in the opinion referred to — hoping that, by this arrangement, they might realize the full amount of their debt. Under this arrangement the defendants conducted the business without interruption or ’ change, until the date of Yale & Bowling’s seizure, and against which plaintiffs’ injunction is directed.

The proof furnished by plaintiffs in injunction is to the effect that, subsequent to the foregoing arrangement having been made, the mercantile establishment was constantly supplied from their house in the city of St. Louis; and that the stock of goods that were seized by Yale & Bowling consisted of the old stock that was adjudicated to them and such additions as had thus been made since the time of adjudication. These facis are attested by sundry invoices and bills of lading, and the testimony of the members of the plaintiffs’ corporation as well as that of the defendants’ firm, notwithstanding the defendant, Williams, stated that he considered that the goods belonged to the defendants, because the plaintiffs had charged the price to their account. But the statement of Williams is completely overborne by the testimony, oral as well as written, including rendered accounts, which are to the effect that the purchase price of the old stock, as well as the price of the new goods, was charged to the account of Bond & Williams, agents. Bond also gave it as his opinion that the goods belonged to the defendants because the profits of the business were applied to the credit of their indebtedness to Gilkeson-Sloss Commission Company. But he was frank enough to admit that, in his opinion, the ownership of the goods was a mooted question. Though it seems quite apparent that his opinion was a non-sequiter, as the fact of the profits of the mercantile enterprise being passed to the credit of defendants with Gilkeson-Sloss Commission Company in effect should clearly indicate that they were owners instead of the defendants. He also admits that, in 1892, Bond & Williams, as agents of Gilkeson-Sloss Commission Company, had possession of the storehouse and stock of goods at Bonita — the property in dispute; and were thus in possession at date of the seizure enjoined. That the stock of goods went in the name of Bond & Williams, agents, but that Bond & Williams got the benefit of the profits of the business. That both of the defendants, Bond and Williams, were paid salaries.

He further states that defendants did “ the mercantile and planting business in 1892, under the contract as agents for Gilkeson-Sloss Commission Company. That that business extended over in 1893— until the seizure in this case. Gilkeson-Sloss Commission Company furnished nearly all the goods, merchandise, etc., for the Bonita store in 1892, and up to the seizure in 1893.”

He gave it as his opinion that, upon a fair settlement between the defendants and Gilkeson-Sloss Commission Company in 1893 there would be a small balance due the latter. He states that third opponents advanced the defendants money with which to buy cotton, and that a disagreement arose between them in reference to the four $1000 drafts that figure in their account, but that, subsequently, credit was given them for $4000 to'cover this aggregate amount. He says that defendants’ object in conducting the mercantile business at Bonita, under the firm name of Bond & Williams, agents, was “to make money enough to pay up Gilkeson-Sloss Oommission Company, and save what they could after paying them up.”

Williams, as a witness, puts the case in this way, viz.:

“What property we would have was responsible for the losses of the firm, if there was any, and whatever profits there was in the business was to go to the homologation of what we owed Gilkeson-Sloss Oommission Company.”

Notwithstanding the foregoing statements of the two defendants, they also state — inferentially, at least — that this agency was a cloak to screen and protect them from other creditors, and that the four $1000 drafts were intended to swell the amount of their indebtedness,. apparently, so as to serve as an additional security for them. But these statements are completely overcome by other testimony, and by their own conflicting evidence.

The contention of counsel for the seizing creditors (brief, p. 8) is to the effect that Bond & Williams were the equitable owners of the goods, and that the third opponents held the legal title as a quasi pledge, or in other words that third opponents were to conduct the business through the agency of the defendants until the latter’s debts were paid and then transfer it to them.

Pursuing that theory, their argument is, that if, at any time, the defendants paid their indebtedness, they would, of right, be restored to the full ownership of the property, regardless of the will of their creditors, and inure to the benefit of all of their creditors generally. Hence they insist that, inasmuch as, under the code, the perfect ownership of a thing is vested in him who has immediate dominion of it, and not in him who has a mere beneficial right in it (R. O. O. 489 • and 490), Gilkeson-Sloss Oommission Company were never owners of the merchandise in dispute, because they only had a beneficial interest in it. But this argument fails, necessarily, because they were not merely conducting the business through defendants, as agents, but were the actual owners of the goods by means of the sheriff’s adjudication.

The code provides also that in case the thing sold remains in possession of the seller because he has reserved to himself the usufruct,, or retains possession by a precarious title, there is reason to presume the sale is simulated, and, with respect to third persons, the parties must produce proof that they are acting in good faith and establish the reality of the sale. R. O. C. 2480.

But assuming that defendants are, in the sense of that article, holding possession by a precarious title and have the burden of proof put upon the third opponents to make out their good faith and show the reality of the sale, we are of opinion that, considering the proofs already adverted to, they have discharged that burden and shown their good faith, as well as the reality of the sale ab initio.

Assuming that the defendant’s possession was precarious, that fact would justify the direct seizure of the plaintiffs in execution and nothing more.

. But there are several transactions and circumstances that counsel for the seizing creditors cite and rely upon as completely offsetting the proofs of the reality of the transaction that are furnished by the plaintiffs in injunction.

Some of them are as follows, viz.:

First. That, notwithstanding the contract of mandate from third opponents to the defendants, whereby it is claimed that the relations of principal and agent were established, bears date February 4, 1892, yet their account with Bond & Williams, agents, was opened on January 6 previously, and upon which are entered as debits the following items, to-wit: (1) The draft given by Burwell to the sheriff for the stock of goods; (2) the amount of attorneys’ fees paid by them in their proceedings against Bond & Williams; (3) sundry drafts of Bond & Williams, given for rent, to various persons, and •for other purposes — thus evidencing the continuation of their old account against Bond & Williams individually.

As subsequently explained in the testimony of third opponents’' witnesses, these were possibly erroneous entries on the account; but, under the agreement of the parties, that when “from, the profits of the business (they) had realized their debt,” they were' “ to restore .the property and business to the defendants,” it was altogether right and proper for the plaintiffs to have kept an exact and faithful account of all their expenses and expenditures in order that they might know when “ from the profits of the business they had realized their debt,” and were under obligation to restore the property to the defendants.

Under their agreement it could not certainly be expected that third opponents should lose the money they had expended in the purchase of the property, the amount of the attorneys’ fees and costs they had expended in the litigation in which they acquired the property, and then surrender the property upon defendants making payment of their judgment debt alone. Surely not. On the con? trary, is it not reasonable that in making a composition with their judgment debtors, third opponents should have required, as a condition, the full and complete satisfaction of all dues and demands? We think so. It would have been a circumstance to which suspicion might have attached had such an arrangement been made and no provision incorporated therein looking to the reimbursement of ■such costs and expenses to Gilkeson-Sloss Commission Company.

Second. That in the course of the correspondence between the plaintiffs in injunction and the defendants, the former wrote a letter to the latter, in which the ownership of the merchandise in question was admitted to be in them. It is as follows, viz.:

“St. Louis, October 14, 1892.
“Messrs. Bond & Williams, Bonita, La.:
“Dear Sirs — Your letter 14th received, with B. L. 17 bales ■cotton; the cost of carrying, including loss in weight, this early in the season will soon amount to a sum in excess of any reasonable advances. As regards the cotton you have picked, it ought to be insured. You can’t afford to lose 250 to 275 bales cotton. Your merchandise, gin and store ought to be insured also. It costs something, but pays; in fact, you can’t afford to go without. The market continues to decline, although crop reports are favorable.
“ Yours very truly,
“ John M. Gilkeson, President.”

This isolated letter, that is much relied upon by the seizing creditors, is, to our thinking, explained by the statement of Gilkeson .and Burwell; and their testimony is supported, in the main, by the •other facts and circumstances of the case. The fact that, out of all :the letters, contracts, accounts and bills of lading, this is the only cono that can be found in which such an admission is made most <clea:ly indicates that it was altogether unintentional. This idea is strengthened when we take into consideration the strenuous effort-that is made by counsel of the seizing creditors to impair and destroy the effect of the testimony of these witnesses. On this-score their contention is, that they were guilty of perpetrating a fraud upon the District Court, and this court, on the trial of the case of Gilkeson-Sloss Commission Company vs. Bond & Williams, Yale & Bowling in liquidation, and A. Baldwin & Co. Limited, third opponents in this, to-wit: That, in that case, the plaintiff company were enabled to defeat the charges of fraud that were made therein by third opponents and intervenors, and obtain a. final judgment sustaining their attachment against the property of the defendants, and amongst other properties the stock of merchandise in dispute, and mainly upon the testimony of those two witnesses. That, in the recent suit of Mrs. John A. Williams vs. Gilkeson-gloss Commission Company — a case just decided by this court — the defendant company defended, on the ground that the draft in question for $5000 and more, which figures on their account against the defendants, had not been paid, or realized as claimed and averred on the-trial of that suit; and that, consequently, they did not owe the plaintiff as payee the amount thereof. That their contention to that effect was embodied in their answer in this last named suit, and constitutes a judicial confession of an unconscionable fraud that the said witnesses enabled the plaintiff company in the first named suit to-perpetrate upon a court of justice.

'Ihe statement relied upon is as follows, viz.:

“ That said draft was drawn with the agreement and understanding by and between your defendant’s agent, Burwell, and plaintiff and plaintiff’s husband, John A. Williams, of Bond & Williams, that the same was to be drawn and endorsed by plaintiff and forwarded to your defendants in St. Louis; that the same was to be charged in account versus Bond & Williams, and that no part of said draff was to be paid by your defendants until they were paid in full by Bond & Williams all indebtedness of Bond & Williams to your defendants, and then whatever amount they could realize out of claim or judgment against said Bond & Williams, that said draft was to enter into and make up, from the property of said Bond & Williams, was to be paid to plaintiff.” Record, p. 416.

The contention of counsel is, that this judicial confession is directly at variance with the testimony of the plaintiffs and that of their-agent, 'Burwell, in the former case, which was to the effect that their entire account against the defendants was just and due, and upon which testimony the court founded its judgment. And that, had the confession that was made in said answer been made known to the court in the former case, a judgment would have been rendered thereon dissolving the plaintiff’s attachment.

Counsel’s theory seems'to be that the attachment must necessarily have fallen, because such proof as that which is contained in said answer shows that defendant’s indebtedness was contingent and not absolute.

But without going into any refined discussion of this question, it seems quite sufficient to say that, conceding the prejudicial effect of the former testimony upon the credibility of Gilkeson and Bur-well, we are unable to perceive any reason why the same consequences should not attach to the credibility of Bond & Williams, who were evidently cognizant of it and consenting to it. For, if it impairs the credibility of the former, it certainly • does that of the latter; and disregarding the testimony of Gilkeson, Burwell, Bond and Williams would strip the case of the seizing creditors of any support.

Aside from their testimony there are sufficient facts and circumstances detailed in the record to sustain the adjudication and defeat the charge of simulation. And, without sanctioning the course pursued by Gilkeson and Burwell, we must say that, even if their testimony in the former case was disingenuous and untrue, yet, as it is supported by other indubitable proofs in this case, we can not pronounce same wholly unworthy of belief.

After a careful examination and study of this case in all of its bearings, our conclusion is that the charge of simulation is not made out, but that the adjudication of the stock of goods and merchandise to the plaintiffs in injunction was a real transaction, and that they are entitled to the affirmance of the judgment pronounced in their favor by the court a qua.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1268.
    Albert J. Lester vs. Ed. Corley.
    The proof disclosing that plaintiff’s daughter had eloped with a young man, at night, on foot, and alone, and that they passed the latter half of the night ht a stranger’s house, together, the defendant was justified in stating to a party of friends, who had been called together in consultation in regard to the matter, the naturé and character of certain rumors that were in circulation in the neighborhood, in reference to her improper intimacy with tile person with whom she had eloped, as a reason that induced him to believe that they should immediately get married in case of their capture by the parties in pursuit of them at the time. ,
    Such a statement is utterly wanting in malice, the essential ingredient of defamation and slander.
    APPEAL from the Sixth District Court, Parish of West Carroll. Ellis, J.

      Robert Whetstone for Plaintiff and Appellant:
    1. Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it. O. 0.2815,
    2. In an action of slander the only possible defences are: either a denial or a justification, or a confession under mitigating circumstances. R, S. 3640; 14 An 406; 15 An. 166; 86 An. 469; 38 An. 162.
    3. There is no such thing in law as a half-way justification. Townsend, Libel and Slander, Par. 212, and note.
    4. Charging plaintiff with being a rogue is slanderous, and actionable, as tending to his infamy, discredit and disgrace. Starke on Slander,Yol. 1, Pars. 12,13,14,15, 16,«17; O. O. 2316, 2315; 14 La. 3S9; Miller vs. Halstein, 12 An. 894; 23 An. 280; 36 An. 469; 38 An. 162; 6 An. 779.
    5. The us'e of opprobious epithets implies malice, where they are slanderous per se, which reflect upon and bring into contempt and disrepute the honor of a female of good social standing, and suffices to maintain an action in damages without proving special damage. Starke on Slander, Vol. 1, Preliminary Discourse, Pars. 13, 14,15, 16,17; 11 An. 206; 33 An. 914; 38 An. 162; 43 An. 967.
    6. Malice implied in the use of opprobrious charges do not mean a spite against the individual, but mains animus, a wanton disposition grossly negligent of the rights of others. 11 An. 206; 86 An; 469.
    7. Malice is an imputation of the law from the false and slanderous nature of the charge. Legal malice need not be proved. 3 La. 207; 2 R. 365; 5 R. 116; 8 R. 51; 25 An. 170; 36 An. 467.
    8. The maliciously calling a woman a damned whore is actionable. Starke, Yol. 1, Pars. 12 to 17; 6 An. 779; 16 La. 389. Where the law implies malice — i. e.,.where thewords are slanderous perse, damages arerecoverable without proof of special injury. 14 La. 198; 16 La. 389; 12An. 894; 23 An. 280; 25 An. 175; 27 An. 219; 29 An. 172; 36 An. 469; 3S An. 162; Sedgwick, Measure of Damages, Par. 39; 34 An. 914; C. C. 1934.
    9. Malice is implied from the circumstances of the case; from the conduct of defendant; from the nature and falsity of the charges; from the injury necessarily consequent thereon. Both malice and injury may be inferred from the nature and falsity of wrongful act without lawful justification or excuse and from want of probable cause. Starke, Pars. 212, 213, 215, and cases cited; 40 An. 423; 27 . An. 214; 11 An. 206; 16 La. 389; 3 An. 69.
    10. Intemperance, or drunkenness, is not a defence to an action of slander, Townsend, Libel and Slander, 249; Ogden on Libel and Slander, 169; 5 111. 30; 25 Iowa, 87; 38 An. 163.

      11. Where a party circulates defamatory charges onmererumor, he can not screen himself by proof of such rumors. 15 An. 492.
    12. Every person has a right to enjoy that degree of respect, good will and social and business distinction to which his own acts and his social and business habits entitle him, and any one who unlawfully interferes with his right, by circulating scandalous reports, renders himself liable for consequent damage. Starke on Slander, 99, No 2.
    13. Injuries to the feelings and to one's social standing are not susceptible of precise adjustment, but such injuries are recognized as a legitimate ground of action for reasonable indemnity. 17 An. 64; 19 An. 322; 23 An. 280; 38 An. 162; 43 An. 967.
    14. This court has granted the following sums as reasonable compensation, in the following cases of slander and libel, viz.: In Green vs. Harvey (14La. 204) the compensation allowed plaintiff for,slanderous charges of forgery was $450; that award to the plaintiff (in 16 La. 198) for the charge of being a rascaí and of false swearing was $500; that allowed the plaintiff in Cook vs. Tardos (6 An. 679) for being called a thief was $400; the amount awarded to theplaintiff in Williams vs. McManus (38 An. 161) for being called a damned whore was $500; the amount allowed the plaintiff in Sportorno vs. Bourehian (40 An. 423) for the circulation of the slanderous report that he was a negro was $500; the amount awarded plaintiff in Morhenan vs. Ohse(17 An. 64) iorhavingbeen denounced as a damned thief was $1000; the amount allowed plaintiff inBaunm vs. Elliott (19 An. 322) for slanderous-and defamatory words was $1000; the amount allowed plaintiff in Savoie vs. Seanlan (43 An. 967) for being called a rogue was $300.
    15. Under the law and jurisprudence of this court appertaining to libeJ, and slander, these are mixed questions, of law and fact, of which courts are better judges than jurors are. 43 An. 967

      Gray <& MeBain and Wells & Wells for Defendant and Appellee;
    1. Malice in eases like the present is an essential ingredient; for if it appear* that the words, though slanderous, were spoken wholly without malice (and of this the jury are to judge) the defendant will be entitled to a verdict. Starke on Ev., Part 4, p. 867, also 2 B, 365.
    2. Where the declarations of the defendant concerning the plaintiff appear to have been uttered without malice, and under circumstances from which no malice is in law implied, they carry with them no pecuniary responsibility. 8 An. 130.
    3. In an action in damages for slander the burden falls on the plaintiff of showing that the language complained of ivas used by tne defendant, and with malicious intent. 21 An. 308.
    4. If the circumstances oí the speaking were such as to repeí the inference that the words were uttered with malicious intent, and exclude any liability of the defendant unless upon proof of actual malice, the plaintiff must furnish such proof. Greenleaf on Ev., Vol. 2, p. 337.
    5. If the charges arq false, injv/i'ious and made maliciously (or malo animo) they combine'all the elements essential to support the action. 40 An. 424.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for defamation and slander of the plaintiff’s daughter, and the plaintiff is appellant from an adverse judgment, predicated upon the verdict oí a jury rejecting his demand.

The charge of the petition is that defendant did wilfully, maliciously and libelously slander and defame the character of his fourteen-year-old daughter by asserting in a public place, and in the presence and hearing of a number of persons, that she had been seduced by one John Bowling, who had kept her as his mistress, and was thus keeping her at the time.

That said false and slanderous statements had exposed his daughter to hatred, contempt and ridicule, and caused her to be shunned by her acquaintances, and that her only means of redress is in a court of justice.

As an aggravation, of the slander and defamation charged, the plaintiff further avers that said false and slanderous assertions of the defendant has not only injured her, “but has injured him personally and every member of^his family;” and “that same has exposed him and every member of his family to hatred, contempt, ridicule and obloquy, and has caused them to be shunned, and has injured them in the community in which they live.”

Upon the foregoing averments plaintiff declares that his daughter personally, he himself and his family have been damaged in the sum of $10,000, and he prays judgment for that sum in his own favor— other members of his family not being joined in. the suit as parties plaintiff or defendant.

First pleading an exception of no cause of action, defendant subsequently excepted that the petition was vague and too indefinite to admit of explicit answer; and that it was further defective, in that it alleges that $10,000 damages was done to himself, his daughter and the members of his family generally, without apportioning the share or portion of each, in consequence of which he demands that the suit be dismissed.

These exceptions having been overruled, the defendant filed an answer, the purport of which is that at the time of said alleged slanderous utterances being made plaintiff’s daughter Susie had just eloped with John Bowling, without the authority or consent of her parents, and was at the time absent; and that the relatives and friends of the plaintiff were then engaged in making search for the couple. That, being at the residence of a neighbor, several other neighbors being present, the question was being discussed between them and the defendant as to what was the best thing to be done with the runaway couple in case they were apprehended; and the latter admits that he did say that “they should marry, because, from all the information he could get they had been as good as married for nearly two years.”

But defendant avers that this remark was made without malice on his part, it being only a suggestion as to the best thing that could be done under the circumstances. That it was but the repetition of a common rumor in the neighborhood at the time, and that said report was true, but he affirms that he never repeated or circulated this rumor, and denies that it had any injurious effect on the plaintiff or any member of his family — his daughter having married another man during the pendency of this suit, with her father’s permission and at his residence.

In the course of his argument defendant’s counsel invited attention to his exceptions, and insisted that they were good and should have been sustained by the district judge.

It seems clear that his exception of no cause of action was not well taken, if it was not formally abandoned, but we think it was abandoned, at least, in effect. And his dilatory exception is untenable— the averment complained of having been manifestly intended to show an aggravation of the defamation and slander as a means of enlarging the quantum of damages.

On the merits the proof is brief but pertinent, and, in the main, harmonious.

In respect to the truth of the report affecting the chastity of the plaintiff’s daughter there is some doubt, she denying and he affirming its correctness, but as to the existence of such a rumor in the vicinity in which plaintiff lived there is, in our minds, no doubt. And it is equally clear that defendant had heard the rumor for some time previous to the time of the occurrence of the alleged slander, though disbelieving it until the elopement took place and brought the circumstances to his mind again.

The testimony of the defendant is in keeping with the averments of his answer and the testimony of several of plaintiff’s witnesses.

All the evidence shows him to be a man of character and first respectability in the neighborhood in which he lives. The fact of plaintiff’s daughter having eloped with the young man in question, under very peculiar and significant circumstances, superinducing pursuit by father and friends, was the immediate cause of his neighbors collecting together for purpose of consultation.

The very object in view was assistance and comfort to the plaintiff in his hour of tribulation and distress — not annoyance and vexation. At this consultation the defendant took the position that in case the erring coiiple were apprehended and brought back to the paternal roof they should marry, announcing his opinion on the faith of what he had heard currently reported in the neighborhood. There is no question of the fact that his advice was correct, for the proof shows that the girl was married soon after this suit was filed, albeit to a different man.

One of the plaintiff’s principal witnesses, in speaking of what transpired at the consultation, says:

“I remarked, after Mr. William Oorley had made some remarks, that I would kill the girl before she should marry Bowling, and then Mr. Ed. Oorley made the remarks which I have related,” thus characterizing the circumstances that lead up to the defendant’s statement,. and evidencing the absence of malice or ill will toward the plaintiff.

The circumstances of the elopement of the plaintiff’s daughter with Bowling are thus detailed by themselves as witnesses.

Bowling’s statement is as follows, to-wit:

“I lived last year, 1891 — the first part of the year, up to about July — at Mr. Lester’s. I worked in the field. Members of his family worked in the field with me. I know Susie Lester. She worked in the field with me a little. Susie and I left there some time in June. We started about 8 o’clpck at night. We left on foot. We came down the big road toward Floyd. Went down to about one mile this side of Goshen. We traveled all night. We were brought back by Lee Virgil and James Lester.”

The statement of Susie Lester, daughter of the plaintiff, and now the wife of Lewis, is as follows, to-wit:

“ It is a fact that I left my father’s house and went with John Bowling. It was about 8 o’clock at night when we left. We went on foot. We went down nearly to the parish line on the road to Delhi. We did not walk all night. * * We rested from 12 o’clock until daylight. We stopped at Mrs. Sweet’s. We left there just at sunrise.”

The foregoing are very suggestive circumstances,, indeed. Recapitulation or comment would not strengthen them, or render them any more cogent or convincing.. ,

We do not feel willing to announce it as our opinion that the charges preferred against the plaintiff’s daughter were proved beyond the peradventure of a doubt, but it is our deliberate conviction that the defendant had sufficient ground to .make the statement he did under the circumstances detailed. That he did not maliciously and causelessly utter and publish a libelous slander to the world, with the purpose or expectation of inflicting injury upon the plaintiff or any member of his family. Having heard of rumors to the prejudice of the young girl, her sudden flight with young Bowling on foot at night, and alone, was quite sufficient to confirm his previous suspicions; and when the plaintiff’s friends and neighbors were summoned together — he among them — for the purpose of consultation, what more reasonable or natural than that he should-give the facts within his knowledge and information, and State his conclusions; particularly, as- the girl’s own course of conduct had not only invited, but rendered same necessary.

We are clearly satisfied that the finding of the jury was correct, and is in consonance with equity and justice.

The case of Seanland vs. Savoie, 43 An., is not a parallel case.

Judgment affirmed.


text:
    No. 1280.
    A. Baldwin & Co., Limited, vs. Bond & Williams. Opposition of Gilkeson-Sloss Commission Company.
    Same as in case cited in opinion.
    PPEAL from the Fifth District Court, Parish of Morehouse. Richardson, J.

      Boatner & LamJcin for Plaintiffs and Appellants.

      Ellis & Nall and Newton & Gasón for Third Opponents and Appellees.
   The opinion of the court was delivered by

Watkins, J.

This case being founded upon the same state of facts as that presented in the case of Yale & Bowling, in Liquidation, vs. Bond & Williams, Opposition of Gilkeson-Sloss Oommission Company, No. 1279, on the docket of this court, and just decided in favor of the plaintiffs in injunction, for the same reasons as are therein assigned like judgment should be pronounced in this case.

Judgment affirmed.


author: Breaux, J.

text:
    No. 1266.
    Mrs. M. K. Williams and Husband vs. Gilkeson-Sloss Commission Company.
    The condition on which the property attached is released and delivered to the defendant is that he should appear by attorney or in person, and that he should furnish security judicatura solví.

    The absent defendant by appearing and bonding the property attached, waives citation.
    The defendants in another, suit judicially admitted their indebtedness to the plaintiff and obtained judgment for the amount against plaintiff’s former debtor.
    They are not to be heard who allege things contrary to each other.
    APPEAL from the Fifth District Court, Parish' of Morehouse. Richardson, J.

      Potts & Hudson and P. T. Baird for Plaintiffs and Appellees.

      Newton & Cason and Ellis & Hall for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff is the wife of John A. Williams, a member of the firm of Bond & Williams.' In 1891 this firm became indebted to her in the sum of $5912.

The defendants were the commission merchants of the commercial firm of Bond & Williams, to whom they advanced supplies and furnished money during that year in a large amount.

. In November, 1891, they executed a draft on the defendant to pay their indebtedness to plaintiff.

The plaintiff, the payee, endorsed the draft and forwarded it to the defendant, with direction to place the amount to her credit.

In December of that year, the firm of Bond & Williams being financially embarrassed, and not having complied with its obligation to the defendants, the latter sued them and obtained a writ of attachment.

They alleged in their petition in that suit that, after allowing al proper credits, there was a balance due them of $16,292, as per itemized account.

Their account was filed in evidence on the trial; it shows that on December 1, 1891, the plaintiff was credited for the amount of her draft, and that the firm of Bond & Williams was charged with the amount so credited.

Judgment was pronounced for the said balance upon due proof of the amount of the indebtedness.

It includes the sum of $5912, amount of plaintiff’s draft.

Property attached, movable and immovable, was seized and sold. It was bought by the defendants.

The amount of the sale did not satisfy the judgment; there is a large balance due to the defendants, who are absentees.

The plaintiff sues to recover the amount of the draft forwarded to the defendants as stated, and prayed for writ of attachment and for garnishment process, which were issued, and certain claims of the defendant were taken possession of under the writ.

In reference to this dráft the plaintiff testified in the case at bar in support of defendant’s account (which account had been previously proved up in case 6852), filed in their suit against Bond & Williams, and denied that any agreement was entered into differing from the allegations and the judgment obtained against her late debtors, the firm just named. One of the defendants states, as a witness, that there was an agreement that the money was not to be paid until all the indebtedness of Bond & Williams had been paid.

That the amount of the draft sued on in this, case is charged to Bond & Williams.

The testimony of a witness (defendant’s agent) who testified in the suit of defendant’s agents, Bond & Williams, No. 6852, that he knew nothing further than is stated on the face of the draft, and of another witness, was admitted over defendant’s objections.

On the trial of the case at bar the testimony of these two witnesses and the letter marked A were offered to prove the agreement alleged in defendant’s answer, was excluded for the reason set forth in the plea of estoppel.

There was no copy of the citation and of the petition and writ of attachment, posted at the court-house door.

Personal service was made on the curator ad hoe appointed to represent the absent defendant.

The curator ad hoe appointed by the court was also the attorney of the defendants.

He, as curator ad hoe, applied to the court for an order authorizing the defendants to take possession of the property attached on their furnishing bond.

He, as attorney for the defendants, not as curator ad hoe, had previously agreed with the .attorney for plaintiff to the delivery of the property attached to the defendants on their furnishing solvent bond.

The bond was furnished by the defendants, represented by their authorized attorneys. ■

The property was delivered to them.

Judgment was pronounced in favor of the plaintiff for the amount claimed, and the property attached was ordered to be sold in satisfaction of the claim.

The defendants appeal.

The plaintiff answers and prays for damages for a frivolous appeal. The bill of exceptions reserved by the defendants to the court’s ruling, excluding the testimony of two witnesses, and the letter marked A, will be considered with the merits of the case.

The defendants defend on two grounds:

1. That the service is illegal; the required posting of the petition, citation and writ 'of attachment at the court-house door not having been complied with.

2. That the defendants became the owner of plaintiff’s claim, and were subrogated to her rights under a verbal stipulation that no payment would be exacted of them before the collection of the amount of plaintiff’s draft from the drawers — the firm of Bond & Williams.

In reference to the first proposition the plaintiff’s counsel argue that the defendants waived -the informality of service of citation and writ of attachment by their appearance in the suit and furnishing bond, and obtaining the possession of the property attached.

In reference to the second proposition they plead an estoppel, for the reason that the defendants in their suit against Bond & Williams, A. Baldwin & Co., and others, intervenors, recovered judgment for the amount and placed themselves in such attitude as to preclude the possibility of sustaining the defence, .that the plaintiff is not a creditor as alleged.

This brings rs to the first point, that embraced in the motion to dissolve the writ of attachment.

The defendants in their agreement to bond the property attached, and in their petition for the order authorizing them to furnish bond and take possession of the property, did not reserve any right to plead informality of service.

They appeared in the suit and unqualifiedly .delivered to the sheriff their obligation to satisfy such “judgmeut to the value of the property attached as. may be rendered against him in the suit pending.”

It is the appearance authorized by Art. 259 of the C. P.

It is characterized as an appearance in the suit.

The only question for .our decision is, does that appearance cure the informality of service alleged?

It is determined in a number of decisions that the' appearance of a defendant in a suit cures want of citation.

Our attention is directed by defendant’s counsel to the case of Love vs. Dickson, 7 M. 1ST. S. 167, that defendant’s giving bond and taking the property out of the possession of the sheriff does not cure a defect similar to that pleaded in the case at bar, and that “ it is a well settled rule that nothing cures defects in citation but appearance and pleading to the merits.”

Subsequent to that decision the point arose in other cases and appearance to release property attached was held as an appearance having the effect of curing informality in citation.

In Rathbbne vs. Ship London, 6 An. 440, the bonding of property attached was given an effect at least equal to an appearance curing a defective citation or the absolute want of citation.

The court says: “The condition on which the property attached is released and delivered to the defendant is that he should appear in person or by attorney, thus rendering himself liable to a judgment in his default to answer, and that he should give security judicatum solvi. We do riot understand that the constitutionalityjof this article is drawn in question, or the power of the Legislature to enact it. It seems to us, beyond all question, that the purpose of the law was to give, in the case provided, to the creditor a personal judgment against the debtor, which he was required to give security to abide by and perform.” The words of the article are free from any qualification or ambiguity and leave room for no other interpretation.

In Love vs. .Voorhies, 13 An. 550, this court decided that the act of bonding the property attached does not debar the party giving it from subsequently moving to‘quash the order of attachment.

The question of citation did not arise in that case; The decision gives no support to the proposition that appearance to bond property attached does not cure the want of citation.

The court in that case approvingly refers to the case of Rathbone vs. Ship London. Beirhand,Thompson vs. Deming, 24 An. 274.

The bond was not executed in the name of the curator ad hoc.

The property was delivered to the defendant and the waiver therefore was the act of the defendant.

The alleged conditional acceptance of the draft presents the remaining issues.

It is not denied that plaintiff was the creditor of Bond & Williams. Her right to receive the draft does not admit of question.

The disposition made of it is not an infrequent act in business — i. e., to send a draft to the drawee, the merchant, with direction to place the amount for which it is drawn to the payee’s credit.

It is possible, ordinarily, to receive a special and conditional acceptance of a draft in lieu of an absolute acceptance.

A verbal acceptance may be shown.

These undeniable propositions are without force or application -in the case at bar, for the reason that the defendants have declared in another suit that the draft was paid and the amount placed to plaintiff’s credit.

He is not to be heard who alleges things contrary to each other. Edson vs. Union Bank, 11 An. 710.

The drawer was the common debtor of the plaintiff and the defendants.

They chose to receive the draft and place the amount to her credit without any entry whatever of any condition as to deferring payment in any contingency.

They are the owners of the claim with a title recognized by the courts and decreed legal in every respect.

The defendants, as plaintiff in that case, alleged their ownership and proved that the amount was credited to Mrs. M. K. Williams, plaintiff in this case.

They can not now be heard to prove that the entry was not correct.

That the cash carried to plaintiff’s credit, as proven in the case referred to, was not cash.

They can not discredit their own title and prove the incorrectness of their own judgment.

Bond and Williams were condemned to pay the amount in question to the defendants as their creditors.

The terms of the judgment can not be changed; it can not be held that the amount was not due to the defendants, but to another.

The regularity required in judicial proceedings and the absolute correctness which should characterize every judgment will not sanction the shifting of positions at will, by those on whose allegations and proof they were obtained.

The judgment of the defendants must remain unchanged as to the amount in question.

If the conditions alleged were to prevail at this time, a final judgment would be without raison d’étre, as to nearly one-third of its amount.

The defendants can not ignore their own judgment, their judicial declarations and their evidence.

The court will not allow the substitution of one debtor for another by creditors at whose instance the judgment fixing their rights was pronounced.

-Our conclusion in reference to the effect of allegations and proof in a former suit, No. 6852, sustains the correctness of the court’s ruling in excluding testimony offered to establish that others and not the defendants are the debtors.

The testimony of witnesses who testified in the former case was not inter alia as to defendants and appertains to the issue involved. The ruling admitting this testimony was not erroneous.

The appellant has not sustained her demand for damages. The issues presented do not impress us as being frivolous.

Judgment affirmed at appellant’s costs.


author: McEneey, J.

text:
    No. 1270.
    Mrs. M. L. Bennett vs. Her Creditors.
    "When a partylapplies for and obtains two orders of appeal in open court, one to tbe Circuit Court of Appeals and the other to the Supreme Court, and prosecutes one, .which is dismissed for want of jurisdiction, this order being null and void, he can avail himself of the other order for an appeal, and prosecute it in the court having jurisdiction.
    The granting of a respite to the debtor by creditors does not impair the privilege they may have on the debtor’s property. The property burdened with the privilege can not be sold and the proceeds ratably distributed among the creditors — only the surplus, after satisfying the privileged debt, can be so distributed.
    APPEAL from the Fourth District Court, Parish of Caldwell. Wear, J.

      Boatner & Lamkin for Plaintiff and Appellee.

      Guriby & Sholars for Opponents and Appellants.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

McEneey, J.

The appellants obtained two orders of appeal in open court from the judgment — one to the Circuit Court of Appeals and the other to this court.

They were applied for and obtained at the same time. The appeal to the Circuit Court of Appeals was prosecuted and dismissed for want of jurisdiction, after which this appeal was prosecuted.

The first appeal prosecuted was a nullity, and the second valid and legal. It was in force and could be prosecuted in accordance with the order granting it. Because the other order obtained at the same time for an appeal was null and void it could not affect the order of appeal made returnable to this court.

The motion to dismiss the appeal is therefore denied. '

On the Merits.

The plaintiff applied for a respite and obtained an order for a meeting of creditors. The meeting was held and the respite was granted by the creditors.

The homologation of the proceedings of the meeting of the creditors was opposed by the Southern Grocer Company, Williams Tobacco Company, Wellhouse & Sons and Hancock Bros. & Co., creditors of plaintiff, who appeared at the meeting and voted against the respite being granted. In number, twelve creditors voted for the respite and seven against it. In amount, the sum of #13,028.21 was voted for and the sum of #627.39 against it.

The opponents allege in their oppositions: 1. That the plaintiff is now, and was at the time of filing her petition for respite, hopelessly insolvent. 2. That the application for relief is not made in good faith, but for purposes of delay. 3. The schedule of liabilities does not correctly show the condition of plaintiff’s affairs, as it omits the legal mortgage'in favor of the minor, James Bennett, and embraces as creditors those who have no valid claim against plaintiff, particularly L. D. McLain. In case the respite should be granted opponents pray that plaintiff be required to furnish security, as required by law. ,

The proceeding of the meeting of creditors was homologated, the prayer of opponents denied, except as to the requirement for security. The regularity of the proceedings is not questioned; no error or fraud is alleged. We think the testimony shows that the plaintiff is solvent, but embarrassed.

L. D. McLain swears that the value of the assets is a fair one.

M. Mecum, clerk of the court, says that in 1887, 1888, 1889, 1890,-he was in the employment of Mrs. Bennett. He is, so he swears, familiar with the parties whose names appear on the schedule, and he estimates that 50 per cent, of the notes and accounts are collectible.

O. O. Bridges, in his testimony, says 50 per cent, would be a fair collection of the notes and accounts.

O. P. Thornhill, an attorney at law, says that a great many of the debtors whose names appear upon the schedule are negroes, and but few of them own real estate. His opinion is that, on an average, not over 25 per cent, of the notes and accounts could be collected. Quite a number of the negro debtors, he says, have resided on plaintiff’s place at different times and the majority of them own some personal property. During the past eighteen months he had seen and known very little of them. These are the only witnesses as to the value of the notes and accounts. We think the preponderance of testimony is to the effect that 50 per cent, of them can be collected. The value of the real estate is not questioned. Deducting 50 per cent, from the notes and accounts, the assets will exceed the liabilities. We need not review the second ground, as the object of obtaining the respite is for delay to meet the obligations of the debtor.

On the second ground alleged by opponents, the testimony shows that L. D. McLain is a creditor of plaintiff for the amount .for which he was placed on the schedule.

James Bennett is the son of plaintiff, a child fourteen years of age. This minor’s mortgage omitted from the schedule is the recorded abstract of the amount of the inventory of the effects of his father’s succession. There is no evidence that the plaintiff owes the minor any sum of money. At all events his liability on said mortgage is contingent, and it may be that in a settlement of the community she may not owe him anything.

Oomplaint is also made that the schedule is not true and exact, and is not sufficiently definite. It is itemized; the notes and accounts are accurately described, and so is the immovable property. But the opponents claim that “mules, horses, cattle and farming implements attached to the plantation, $3106,” is too indefinite a description of this property. It is sufficiently identified with the plantation to which it is attached. The inventory, taken altogether, is a fair exhibit of plaintiff’s property and is a substantial compliance with the law.

The complaint that the'application for the respite was not made in good faith, we think is not sustained by the evidence.. It appears that the plaintiff referred her affairs to her brother and to her attorneys. To avoid the "necessity of a respite, .they advised a compromise with the creditors — the brother, L. D. McLain, offering to advance the money in case all the creditors accepted the. proposition. Some accepted and some declined the proposition, and the proposed settlement was of necessity abandoned. We find nothing in these several offers to adjust her indebtedness that impugns her good faith in her application for the respite,

Judgment affirmed.

On Application for Rehearing.

On the application for á rehearing in this ease our attention is called to the fact that we have not considered as applicable to the case the authority referred to by opponents in case of Phillips vs. Creditors, 36 An. 904, and have omitted to notice in the opinion the “main ground ” upon which was based the appeal.

1. The case of Phillips vs. Creditors has no bearing on the facts in this case. The only statement of assets in that case was “ Merchandise, as per ledger and open accounts, horses, etc., $10,320.” In the case referred to we said such a schedule was equivalent 'to no schedule at all. The schedule in this case presents no such defects. The horses, mules, etc., are identified with the plantation to which they are attached and are valued.

2. In opponent’s brief it is stated in reference to the “ main ground” on which the application for a rehearing was the basis of the appeal, “Your honors will understand that while opponents did' not base their opposition on this specific ground, yet testimony quoted below was received without objection, and will of course be considered by the court.” In the application for a rehearing it is also stated, “ it is true that the above testimony is not directly responsive to any allegation in our opposition, but it was received without objection, and of course will be considered by the coart.” Not having been specifically alleged in the opposition, and the evidence not being responsive to any allegation made by opponents, we were of the opinion that this part of the opposition, urged only in the brief and in argument, was not seriously insisted upon by opponents from the following extract from their brief: “To take advange of this act [the failure of the deputy sheriff on the persuasion of plaintiff to seize ten bales of cotton on the plantation, which was afterward turned over to L. D. McLain, who had a privilege on it] of1 indulgence of the sheriff and remove the cotton to avoid its seizure was an act of extreme bad faith in plaintiff; but opponents have not held her individually responsible for the ungracious act.” The omission was not from inadvertence, as we had fully examined the record and the brief of opponents, and inferred from the facts and the brief that this point was not seriously pressed, but that the plaintiff was relieved from responsibility individually and the blame attached to her brother, and this explanatory paragraph was introduced in order to excuse her and criticise him. Opponents say in their brief: “The plaintiff had for quite a number of years been conducting business as a public merchant and there had beén nothing in her career to indicate that she was familiar with any of the various shifts and devices often resorted to by insolvent debtors to place their property beyond the reach of creditors, or to give an unfair preference to some of them. It was left for her 4 financial manager ’ to invoke and to put in operation through the machinery of the courts an equitable remedy, intended for the relief of the embarrassed but honest and solvent debtor,” etc.

Referring to the facts in the record, it appears that L. D. McLean had furnished the money and supplies that raised this cotton. This is not contradicted. He had a pledge and privilege upon it. The opponents do not assert any privilege upon it. They are ordinary creditors.

The proceeds of the sale of this cotton could not be ratably, as contended by opponents, applied to the payment of all the debts. By granting the respite the creditors do. not relinquish the privilege and pledge they may have on particular property. Mrs. Bennett, at any time after the respite was granted could — in fact, she was bound, under her agreement to do so — turn the cotton or its proceeds over to the furnisher of supplies. He had a right to the proceeds of the sale sufficient to pay his privileged debt. The surplus only could he ratably applied to the payment of the other creditors.

Opponents were in no way injured by this disposition of the cotton. The evidence does not satisfy us that there was a surplus after paying the privileged debt. No complaint is made of the amount for which the cotton was sold.

McLain’s debt for supplies furnished on the crops raised and gathered amounted to $3000, and for the current year $2250, which was placed on the schedule.

We do not see in what manner opponents have been injured, and we are satisfied that the plaintiff has made a fair exhibit of her assets and liabilities, and has been guilty of no fraud in applying for relief.

Rehearing refused.


text:
    No. 1277.
    Reynolds & Henry Construction Company vs. The Mayor and City Council of Monroe.
    In its application to municipal corporations particularly, the estoppel pleaded must be unequivocal and certain.
    The terms of the contract between plaintiffs and defendant’s assignor, and the statutes, made the official promulgation of the returns of the special election a condition precedent to«any ordinance by the council levying the special tax.
    Prior to the promulgation, giving sanction to the election as held, the tax-payers can not be compelled to pay the special tax.
    APPEAL from the Fifth District Court for the parish of Ouachita. Richardson, J.

      Boainer & Lamían for Plaintiffs and Appellees:
    Exemption from taxation of persons or property is not in contravention of Arts. 203, 205 and 207 of the Constitution, so long as no injury flows therefrom. 44 An, 863,
    The provisions of said Arts. 203, 205 and 207 apply to general taxation only, and not to special assessments or taxes voted for local improvements. 3 Wash. 84; 27 Pac. 1077.
    The'Mayor and City Council being ministerial officers only, whose duty it was to receive the returns of the election as made by the returning officer, and to declare the result of said election as shown by the face of the returns, without the right to reject, or in any manner alter the same, the failure to formally declare the result of said election can not invalidate it. 69 Ala. 281; 41 Ark. 111.
    The defendant can not allege the forfeiture and nullity of a tax and at the same time deny that it was voted.
    The defendant having officially and publicly admitted the voting of the tax by declaring the same forfeited, and seeking to repeal the ordinance under which it was voted, is estopped from denying that the election was carried in favor of said tax.
    A municipality is bound by its admissions and judicial pleadings, the same as private persons, and is entitled to no greater right or immunity as alit’gant than they are, and the doctrine of estoppel applies to a municipality just as it does to individuals. 28 An. 462; 34 An. 359; 1 Dill., Sec. 521.
    Solemn admissions of fact made in open court by a party litigant is conclusive and binding upon the party making such. 70 Ga. 384; 30 An. 838. In the absence of special statutory authorization, courts are without jurisdiction ratione materia to entertain cases of contested election. No statute invests the courts of this State with jurisdiction over contested elections to determine whether or not a special tax has been voted as authorized by the Constitution and Act 35 of 1886. 13 An. 89; 41 An. 846; 43 An. 1009;'44 An. 863.

      T. O. Benton and Chas. T. Madison for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs, assignees of the Houston Central, Arkansas & Northern Railway Company, sue the defendants to compel them to assess and cause to be collected and paid over to them a tax of 5 mills on all taxable property in the city of Monroe for one year.

On the first day of March, 1888, the City Council adopted an ordinance, upon the petition of a required number of tax-payers, calling an election under the laws of the State, and submitting the proposition to the property tax-paying electors of the city, of voting a five-mill tax for ten years in aid of the Houston Central, Arkansas & Northern Railroad.

The ordinance directed the returning officer to provide ballot boxes and appoint commissioners of election to write down the names of voters and make returns of election.

The returning officer for the parish of Ouachita, in 1888, testifies that commissioners were appointed and the election held on the tenth day of April, 1888.

That all the prerequisites to the election were complied with.

That he certified the result in writing to the Mayor and City Council.

The Mayor corroborates the statement as to the returns in testifying that the returning officer appeared at the meeting of the City Council and handed in the returns of the election.

The plaintiffs obtained an order of the court, directed to the Mayor and to the secretary and treasurer, to produce and deliver in court the returns to the council by the commissioners of election, and the returns of the returning officer, whereby he expected to prove that the result of the election was largely in favor of the tax.

These officers state in answer to the order that they have made diligent search for the documents referred to in the order and have not found them.

The secretary and treasurer avers that he entered upon the discharge of the functions of his office on or about the 14th May, 1888.

That there were held four meetings of the City Council from and between April 10, 1888, and the 14th day of May of that year, when he became an officer of the Council.

That there is no record or mention in the minutes of the receipt or filing of any of the documents referred to in the order.

It is admitted that the ordinance book does not contain any ordinance promulgating the result of the election or mentioning the re - turns of the election.

The plaintiffs incorporate the ordinance under which the election was held in .their petition, and they aver that “ the result of the said election being in favor of voting said tax was duly promulgated by the Mayor and City Oouncil of Monroe, La., as prescribed by law.”

Further, that the assignors to plaintiffs began and prosecuted in good faith the building of the railroad in the parish of Ouachita and in the city of Monroe within ninety days after the promulgation of the vote.

We eliminate the other issues of the ease and direct our attention in reaching a conclusion to questions relating to and growing out of the fact, that, there has not been as yet any promulgation of the return of election.

Estoppel.

Before the trial the plaintiff interposed a plea of estoppel.

The City Council adopted an ordinance in which they declared that the ordinance 641, approved March, 1888, ordering an election for and authorizing the assessment of a five-mill tax for ten years on the property in the city of Monroe for plaintiffs’ assignor is repealed and all rights thereunder forfeited for the reason that they had failed to comply with the conditions upon which the tax was authorized.

The plaintiffs contend that the defendants are estopped from denying that an election was held and a tax voted.

That in undertaking to repeal the ordinance they have admitted its legality and binding effect.

That by declaring the forfeiture of the tax and seeking to repeal the ordinance under which it was voted, they are estopped.

The District Court everruled the plea of estoppel.

The judgment on the merits was pronounced in favor of plaintiffs for one year’s tax.

From the judgment the defendants appeal.

Our views coincide with the action of the District Court in. overruling the plea of estoppel.

The truth of the proposition that the attempt at repeal did not affect any of the rights the plaintiff may have had is self-evident.

The counsel based their release from the burden of this tax upon other grounds than the alleged informality of the election.

They declared that the railroad company had not complied with its contract, and that as a result they were released.

This declaration did not have the effect plaintiffs’ counsel intended it to have.

A municipal corporation seeking release from taxation on the ground that the tax is not due — that the consideration of the contract has failed, is not estopped from defending upon other grounds than want of consideration. Error in repealing or attempting to repeal an ordinance can not be made the basis of taxation.

Conceding, argumenti gratia, that the plea of estoppel was well taken, and that it should be sustained as to the municipality, it would not bind the tax-payer.

It is beyond the power of a municipality to thus bind them.

Touching the authority of municipal corporations, Mr. Dillon says:

14 The general principle of law is settled beyond controversy, that the agents, officers, or even City Council of a municipal corporation can not bind the corporation by any contract which is beyond the scope of its powers. The opposite doctrine would be fraught with much danger and accompanied with such abuse that it would soon end in the ruin of municipalities or be legislatively overthrown.”

The power of taxation is a part of sovereign authority.

Declarations in the attempt to repeal ordinances can not have the effect of supplying complete omissions to record proceedings, although they may be supplied by other testimony.

Dillon on Municipal Corporations, Vol. 1, p. 370, et seq.

In reference to silence when it is the duty of the party to speak, and of its being equivalent to concealment, and operating an estoppel as argued by plaintiff’s counsel.

We deem it answer to state that—

The party who contracts with a municipal corporation is without right to invoke the silence of its council and its failure to give proper notification of a want of formality as a reason to compel the taxpayer to pay tax, although not legally declared and announced.

He can compel compliance.

Save the first ordinance ordering the election, no record was kept.

It does not appear of record that anything more was done than to order the returning officer to deliver the returns to the secretary.

There was no compilation made of the returns.

In reference to them the returning officer says that they, to the best of his knowledge, were delivered to the secretary, a,nd adds: “I

announced the result of the election verbally is what I mean by promulgating the election.” He does not state whether the election was carried for or against the tax.

The only remaining testimony upon the result of the election is the following by counsel during the trial:

“It is admitted that there have been three different councils elected since the tax in controversy was voted.”

The admission was directed to the different councils elected.

It can not be determined that the remainder of the sentence sufficiently announces the result to fix the responsibility of the taxpayer.

Official Promulgation.

Our examination of the record has not resulted in our discovering any testimony establishing that the election was carried for the special tax.

The statutes command that the municipal authority shall make public and official promulgation of the result. Art. 84 of 1880; Art, 44 of 1886.

Sec. 9 of the ordinance of special election provides for an official promulgation of the returns.

This ordinance must be read in the contract between the parties. It imperatively includes promulgation. The law and the contract have made it a condition precedent to the final action of the council imposing the tax. Mandamus will lie to compel compliance with the statutes and the terms of the contract, but the tax-payer can not be made to pay the taxes prior to official promulgation of the result of the special election.

Relative to removing a parish seat in one of the parishes it was required of the police jury to proclaim the result of the election. Act 33 of 1888.

This court determined that the result of the election should be officially announced, and gave its special sanction to the enforcement of that provision of the act.

We quote from Davis, Mayor, vs. Police Jury, 42 An. 971:

“It is evident that no compilation of the votes, as contemplated and required by Act 33 of 1888, was made. No result was declared or proclaimed by any order or vote of the police jury. State ex rel. Davis vs. Police Jury, 43 An. 1010.

The functions of police juries and city councils in the matter of holding special elections are of importance.

In the absence of statutory authorization to the courts in determining contests in matter of election much is left to them in determining whether or not a special tax has been voted.

The extent of the authority is interpreted in a number of cases. 13 An. 89; 41 An. 846; 43 An. 1009; 44 An. 863.

In the case at bar these decisions are referred to as supporting plaintiff’s contention that this court is without authority over contested election to determine the result.

This emphasizes the importance on the part of these bodies of complying strictly with the forms prescribed, and of their not treating as merely directory the compilation of the votes they should make and the official proclamation of the result.

It may be asked, what is the practical usefulness of the ruling?

The answer at once suggests itself. It is a compliance with the law’s requirement.

Moreover, it places the seal of approval on the different acts preceding the proclamation; keeps a record of that of which a record should be kept; a memorial of a levy of taxes, of the different steps taken in lending aid to improvements, of which a. community should have a complete and ready reference.

There is safety in adhering to the letter of the statute in the exercise of a comprehensive grant of power, such as that conferred upon the municipalities in the imposition of special taxes by submitting the levy to a special election.

The conclusion is well supported; official promulgation should be made, and a record kept of the promulgation.

The duty concerns the corporation, the tax-payer and the party contracting.

For reasons assigned it is ordered and decreed that the judgment appealed from be annulled, reversed and avoided, and plaintiffs’ suit is dismissed without prejudice to any legal right they may have to take such legal proceedings as the law may allow to compel the Oity Council to promulgate the election.

Plaintiff and appellee to pay the cost of both courts.


author: Nicholas, O. J.

text:
    No. 1429.
    State of Louisiana vs. Prank Jackson.
    1. Although special charges tendered by an accused may contain correct expositions of law, the court can not be called upon to submit them when there is no evidence in the case to which they arelapplicable; and on the other hand, even though a single sentence of a judge’s charge may have stated too broadly a proposition of law, that fa^ct would not justify a setting aside of the verdict where there is reason to believe that the jury was not misled, and that, as applied to the facts of the particular case, it was correct.
    APPEAL from the Eighteenth District Oourt, Parish of Terrebonne. Caillouet, J.

      E. B. Dubuisson, District Attorney, for the State, Appellee.

      J. O. Briant and 3. M. Wallis, Jr., for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholas, O. J.

The defendant indicted for murder, having been tried and convicted of the crime and sentenced to be hung, has appealed. His hope of reversal rests on two bills of exception.

The first is as follows: Be it remembered, that on the trial of the above entitled and numbered cause evidence having been admitted to show that just previous to the homicide accused had been violently struck over the head by a person other than the deceased and that thereupon accused went quickly to his house, some three or four acres from where the assault took place, and, arming himself with a gun, was returning to where he was assaulted, and that on his way deceased attempting by friendly means to prevent him from going there — accused having warned deceased not to approach him, and deceased, in disregard of this warning, having continued toward the accused, the latter shot and killed him. H. N. Wallis, Jr., and J. C. Briant, of counsel for defendant, asked the court to give the following special charges to the jury:

1. “That an illegal attempt to restrain a man’s liberty, even under color of legal process, is such provocation as to reduce the offence to manslaughter. This holds where a man is injuriously restrained of his liberty, as where a creditor stood at the door of his debtor with a drawn sword to prevent him from escaping while he sent for a bailiff to arrest him, or where a sergeant put a common soldier under arrest, who thereupon killed the sergeant with a sword, and upon the trial the articles of war were not produced, nor any evidence given of the usage of the army, and so no authority in the sergeant appeared.”

2. “Where the defendant having been violently beaten and abused, made his escape, ran to his house eighty yards off, got a knife, ran back, and on meeting with the deceased stabbed him, it was held but manslaughter.”

“And the court having refused togive such special charges on the ground that he would thereby comment upon the facts of the case, the said H. M. Wallis, Jr., and J. C. Briant, of counsel for the defendant, did thereupon reserve this bill of exception to the ruling of the court, which bill being submitted to opposite counsel and found correct was duly granted and signed in open court.”

The court stated as to this bill that “ both charges were refused because even if absolutely correct in point of law the facts of the case did not warrant either of them. The evidence bearing on the killing of the deceased, Geo. Bisland, was that the accused had some difficulty with one Labit at a plantation store. As to the origin of this difficulty there was contradictory evidence. Some witnesses testify that Labit and the accused began tussling in fun; that Labit requested the accused to desist and behave; that accused did not desist, and in their tussling they both fell down the gallery of the store; that Labit claimed the accused had struck him first. After they fell off the gallery some of the accused’s friends started to take him (accused) away from the store, Labit came up with a friend, both armed with axe handles. That some of the accused’s friends requested them to go away; that Labit said he would strike him (the accused’s friend) if he did not look out; that thereupon accused’s friend turned the accused loose and Labit began striking the accused over the head with the axe.handle, whereupon a struggle ensued in which the accused succeeded in wresting from Labit the axe handle, when Labit ran back towards the store, the accused pursuing. Labit secured himself in the store and accused threw down the axe handle and started towards his house in the quarters, some three or four acres off. Some witnesses say he walked fast; others that he went in a dog trot.

“He was covered with mud and blood which flowed from gashes in his head, his wife followed, screaming and calling out for some one to go into the accused’s house and take his gun from there so the accused could not get it. One or two men went into the house ahead of the accused and looked for the gun, but.not finding it came out again. The accused went into the house and came out with the gun and started along the road in the quarters of the plantation towards the store. His wife and others called out to the men in the quarters to stop the accused, to prevent him from going to the store, as he would shoot Labit with his gun. As he neared George Bis-land’s house, George Bisland stepped off his gallery and walked towards the accused, saying to him: Brother Prank, don’t do that, listen to me and go back with your gun. The accused ordered him to stand back, saying he would kill any son of a bitch who laid his hand on him. George Bisland, the deceased, continued on, walking toward him, talking to him in a persuasive way and trying to dissuade him from proceeding further with his gun. When they got within three or four feet of each other, the accused again told him to stand back and he snapped one barrel of his gun on him. George Bisland kept on talking to him in a persuasive manner and advancing on him, when accused stepped back a step or two and fired a fatal shot into the lower abdomen of George Bisland. George Bisland then grabbed the barrel of the gun and continued entreating the accused to desist from his intention of going to the store with his gun. The accused called out to him to let go the gun, and a struggle ensued for the gun in which the accused struck the deceased on the forehead. At this time a woman came to George Bisland’s assistance, and the accused, the gun having been freed from the hold of Bisland, struck her with the gun and kicked at her. At this time it was discovered that George Bisland’s clothes were on fire and that he was shot and wounded. The accused then went back to his house, and coming out was seen to go through motions as if reloading the gun (a breach-loading gun), and he went back to the front of the store where he had been beaten with an axe handle and inquired for the man, evidently meaning Labit.

“Under the above state of facts the court refused to give the first special charge asked, because there had been no restraint used by the deceased, who was, on the contrary, peaceably engaged in the laudable attempt to dissuade a friend from committing a felony; and the second special charge, for the reason, also, that it had no application to facts of the case, as the accused never had any difficulty with the deceased, much less had he beaten him. The evidence showed that at no time the accused carried the stock of his gun to his shoulder, either when he snapped or when he fired.”

The second bill declares: “That on the trial of the cause, the court charged the jury that the provocation, in order to reduce the homicide from murder to manslaughter, must come from the party with whom the accused had the difficulty, and that provocation from any one else would not be sufficient for that purpose, whereupon counsel for defendant did reserve this bill of exception.”

The statement of the district' judge is as follows: “The facts of the case are detailed in another bill of exceptions filed with this, and I refer to them in connection with this bill as explanatory of the charge given and complained of, which was to the effect that if one in the heat of blood and passion upon due and adequate provocation killed another, it would reduce the crime from murder to manslaughter ; but in order to reduce the homicide to manslaughter, the just and adequate provocation giving rise to the heat oí blood and passion must have been given by the deceased. That provocation given by one person to the accused giving rise to heat of blood and passion did not authorize the accused to attack and kill another person, and claim that he was acting in the heat of blood and passion in order to reduce the homicide to manslaughter, unless the excitement and passion were of such a nature as to utterly dethrone reason. What is adequate provocation had been previously defined, and from the statement of facts given in the other bill, that deceased, had not given any provocation to accused to cause heat of blood; and passion. In the same connection the jury had been charged ort insanity.”

The entire evidence in this case went without objection to the jury. The facts are known to us only in so far as we find them stated in the bills of exception. Taking these recitals as true, the judge’s action in ruling adversely upon the special charges submitted to him was clearly correct.

There was no attempt on the part of the deceased to illegally restrain the accused of his liberty, either under color of legal process or otherwise, and therefore a charge based, as was defendant’s first proposition, on the hypothesis of such an attempt, would have been totally unsupported and unwarranted. What is called the second special charge was nothing more than a request that the judge should announce to the jury that on some occasion, not particularized, where a defendant who had been violently beaten and abused made his escape, ran to his house eighty yards off, ran back and meeting with the accused stabbed him, his act had been declared to be not murder, but manslaughter.

Assuming that such a decision had been at some time rendered, the judge very properly refused to refer to it — it must have rested on special exceptional circumstances and fixed and announced no principle; if any was deducible from it, the principle and not the decision should.have been advanced and urged. There was, however, nothing in the case at bar under the statement of facts as given upon which the court could have been called upon to charge upon the law of manslaughter and to make his failure to do so ground of reversible error. There was no evidence in the case tending to reduce the crime below the grade of murder.

The judge was not requested to deliver a written charge. The. only portion of it objected to by defendant’s counsel is a single sentence wrenched from the whole. Though the particular sentence brought to our notice might, under some circumstances, be found to be too broadly stated, we have no reason to believe that, when taken in connection with other portions and the evidence to which it was to be applied, the jury was misled, and we are of the opinion that the accused was not prejudiced.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 1440.
    The State of Louisiana vs. Leonard Ashley.
    1. The decisions in cases ol State vs. Onmaclit, 10 An. 198, and State vs. Mason, 32 An. 1218, affirmed and applied.
    2. A special charge to the effect “ that to And the accused guilty of murder, it is necessary that a malicious intent to kill existed at least Ave minutes before the killing,” was correctly refused. There is no human gauge by which the duration of intent can be measured. If the killing was with the malicious intent to kill, the case was one of murder, although that malicious intention was formed at the moment of striking the fatal blow.
    3. A charge which assumes that drunkenness is so inconsistent with malice that when shown to exist at the time of the killing, it becomes the duty of the State to seek for it at a period anterior to the drunkenness and to show affirmatively that the drinking was for the purpose of committing the deed, is palpably false.
    4. It does not necessarily follow that a homicide was not murder because done in sudden passion. There are many cases where that fact would entitle an accused neither to an acquittal nor to a verdict of manslaughter.
    APPEAL from the Twenty-first District Oourt, Parish of St. Charles. Rost, J.

      E. B. Dubuisson and Gervais Leche, District Attorneys, for the State, AppePee.

      R. McCulloh for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant was indicted for murder,"tried, convicted and sentenced to be hung. He has appealed. He asks a setting aside of the verdict and judgment on the ground that the court erroneously refused to charge the jury as requested by him in three special charges submitted to him, and on the ground that the record does not show that the indictment was found by the grand jury and returned into and presented by them in open court. The last objection urged is presented under an assignment of error — the former in a bill of exception reserved.

The particular error assigned is not tenable. The record, though made up in a very unsatisfactory and careless manner, is not so much so as to call for a reversal. See the eases of State vs. Onmacht, 10 An. 198; State vs. Mason, 32 An. 1018.

The special charges refused were as follows:

1. That to find the accused guilty of murder it is necessary that a malicious intent to kill existed at least five minutes before the killing.

2.. That if the jury find that the accused was drunk and under the influence of liquor at the time of the killing, there can be no malice aforethought as charged and consequently no murder unless the accused drank for the purpose of committing the deed.

3. That the killing in the heat of blood or passion is not murder and the jury must take into consideration whether the accused was in liquor or not so as bo become more easily violently angry.

In respect to his action and ruling the judge says: The jury was charged fully upon the law of murder, and specially as to malice, express or implied, and the court refused to charge the first special charge because the question of how long the malicious intent had existed was a matter of fact for the determination of the jury.

The court refused to charge the special charges second and third in the form presented because they were not considered good law as to matters of drunkenness. The court had explained fully to the jury the difference between murder and manslaughter and the law applicable to both, and with this reservation the bill is signed.

The contention of the accused that “ in order to find him guilty of murder it was necessary that a malicious intent to kill should have existed at least five minutes before the killing” is utterly without merit.

If the malicious intent to kill exists at the time of the killing it is enough.

On this subject Wharton, in his “Law of Homicide,” § 32, says:

“No human gauge existing by which duration of intent can be measured, we are obliged to resort for this purpose to the same probable reasoning by which the existence of intent is proved. A shoots B in the public streets without authority and without provocation. As reasonable beings usually' premeditate any important step they take, we infer that A premeditated this shot, and this inference is sufficient proof on the lack of all other evidence of premeditation. This is what is meant by the expression we frequently meet with in the books that instantaneous intent is enough. It is not meant by this that it is enough if the defendant formed the intent coincidentally with the blow, for this we have no way of determining. What is meant is that even where we have no other proof of intent prior to the blow, from the blow we may infer the intent; hence it is constantly laid down that intent at the time of killing is enough. It is not intended to assert by this that a person who, under a sudden impulse, kills another is guilty of murder. To say this would be unwarranted for the reason that we have no means of saying that a particular impulse is sudden. What we have a right, however, to say, and what the law means by this maxim to say, is this, that when a homicide is committed by weapons indicating design, then it is not necessary to prove that such design existed at any definite period before the fatal blow. From the very fact of a blow being struck, we have a right to infer (as a presumption of fact but not of law) that the blow was intended prior to the striking, although it may be at a period of time inappreciably distant.” In the leading case of People vs. Clark, 7 N. Y. 385, the charge was If the jury believed the killing was with the intention to kill, though that intention was formed at the moment of striking the fatal blow, it was murder,” and the chief justice in delivering the opinion of the court said: “ If there be sufficient deliberation to form a design to kill and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow or whether it be contemplated for months.” See also Wharton on Homicide, § 180.

It will be observed that in the charge submitted, the existence of the malicious intent to kill at the moment of the killing is admitted and it is claimed that this intent should have existed for a defiinite period prior to the same.

The second charge assumes that the fact that a person is drunk at the time of his killing another is so inconsistent with the idea of malice that it becomes the duty of the State to trace the existence of malice to a period anterior to the drunkenness and to show affirmatively that the drinking was for the purpose of committing the deed, otherwise there can be no murder.

This position is so palpably false as to need no particular discussion.

In Pirtle vs. The State, 9 Hump. Rep. 663, Judge Turley in delivering the opinion of the court said: “It will frequently happen', necessarily when the killing is of such a character as the common law designates as murder and it has not been perpetrated by means of poison or by lying in wait, that it will be a vexed question whether the killing has been the result of sudden passion, produced by a cause inadequate to mitigate it to manslaughter, but still sufficient to mitigate it to murder in the second degree if it be really the true cause of the excitement, or whether it has been the result of premeditation and deliberation, and in all such eases whatever fact is able to cast light upon the mental status of the offender is legitimate proof, and among others that he was at the time drunk; not that this will excuse or mitigate the offence if it were done wilfully, deliberately, malignantly, maliciously and premeditatedly (which it might well be, though the perpetrator was drunk at the time), but to show that the killing did not spring from a premeditated purpose, but sudden passion and heat to the point of taking life without premeditation and deliberation.”

Wharton, referring to this decision, says: “ Here the court especially lays down the rule to be that in all cases where the question is between murder in the first and murder in the second degree, the fact of drunkenness may be proved to shed light upon the mental status of the offender and thereby to enable the jury to determine whether the killing sprang from a premeditated purpose or from passion excited by inadequate provocation. And the degree of drunkenness which may then shed light upon the mental state of the offender is not alone that excessive state of intoxication which deprives a party of the capacity to frame in his mind a design deliberately and premeditatedly to do an act: for the court .says that in the state of drunkenness referred to a party may well be guilty of killing wilfully, deliberately, maliciously and premeditatedly, and if he so kill he is guilty as though he were sober. The principle laid down by the court is that when the question is, can drunkenness be taken into consideration in determining whether the party be guilty of murder in the second degree,’ the answer must be that it can not; but when the question is, what was the actual mental state of the perpetrator at the time the act was done — was it one of deliberation and premeditation — then it is competent to show any degree of intoxication that may exist, in order that the jury may judge, in view of such intoxication in connection with all the other facts and circumstances, whether the act was premeditatedly and deliberately done.”

The complaint which the defendant urges before us is not that the court excluded evidence on the subject of intoxication for the purpose of showing the actual mental state of the accused at the time the act was done, in order that the jury might determine whether in view of intoxication in connection with all the other facts and circumstances the act was such as to call for a verdict of murder, or whether one of manslaughter, or whether if calling for a verdict of murder it should be an unqualified verdict, carrying with it the death penalty, or a qualified verdict entailing imprisonment for life. If defendant had testimony bearing on that subject it was permitted to be introduced and went before the jury, and being before the jury the court would have acted unjustifiably had it given the charge requested.

The third charge was faulty in assuming that the killing was in the heat of blood and sudden passion, and it would most certainly have misled thé jury. The proposition advanced that because a homicide is committed in sudden passion that, therefore, necessarily it is not murder is not law. There are many cases where that fact would entitle an accused neither to an acquittal nor to a verdict of man? slaughter.

Judgment affirmed.