State vs. Briscoe. or use in the argument or on the trial of the cause, and we should without hesitation set aside the verdict and sentence and remand the cause if it were even stated in the bill that the definition of malice so read to the jury was incorrect, as however it does not; while it does appear from the bill that the judge complied with the request of counsel, and instructed the jury not to consider the manuscript authority; and it does not appear that he asked that the trial be suspended and the jury discharged, or that any thing else be done which ought to have been and was not done. We can not, therefore, sustain this ground of error. In overruling it, however, we must remark that the State wishes no unfair advantage taken, even in the smallest matter, of any one prosecuted for crime in her courts. The remedy in such matters as that here complained of is in the hands of the district judge, and should be promptly applied. We do not understand this to be a case of the mere reference to a memorandum of counsel as to an authority not produced. Nor do we wish to be understood as expressing the opinion that an attorney is required to produce and read every authority upon which he relies in argument; to do so would be a great abuse of the patience of intelligent courts. The second ground of error assigned is, that the judge charged the jury "that if death ensues from a wound given in malice but which being neglected or mismanaged the party died, this will not excuse the prisoner who gave it, but he will be held guilty of murder unless he can make it clearly and certainly appear that the maltreatment of the wound or the medicine administered to the patient, or his own miscon duct, and not the wound itself, which was the sole cause of his death." The judge says the above is only a part of the charge given by the court and extracted from the decision of Justice Spofford in State vs. Scott, 12 A. 274, and that the court quoted in his charge all that portion of the decision found on page 275, which reads as follows: "It is sometimes impossible to procure skillful surgical aid. If a person dies from a wound inflicted with murderous intent, whose life might have been saved by the skill of a surgeon, whom it was impossible to procure, the crime is none the less murder. The true point is, did the party die of the wounds inflicted by the accused? If he did, the facts that he had no surgeon or an unskillful one, or a nurse whose illappliances may have aggravated the original hurt, can not mitigate the crime of the person whose malice caused the death. To do that it must plainly appear that the death was caused not by the wound but only by misconduct, malpractice, or ill-treatment on the part of other persons than the accused." In support of this view the opinion then cites 1 Hale's P. C. * 428; Wharton's Law of Homicide, 241; 1 Russel, 505; and Greenleaf's Evidence, vol. 3, sec. 139, which is in almost the exact language of the charge complained of, with the addition "for if the State vs. Briscoe. wound had not been given the party had not died. So if the deceased were ill of a disease apparently mortal, and his death was hastened by injuries maliciously inflicted by the prisoner, this proof will support an indictment against him for murder; for an offender shall not apportion his own wrong." We understand the court to mean that when a wound from which death might ensue has been inflicted with murderous intent, and has been followed by death, the burden of proof is upon the party inflicting the wound to make it appear to the satisfaction of the jury that the death resulted not from the wound but from some other cause, such as malpractice, want of skill, misconduct, or culpable neglect, without which death would not have resulted. In other words, that the State having first shown the existence, through the act of the accused, of a sufficient cause of death, followed by death, the death is presumed to have resulted from the injury or wound inflicted, unless the accused can rebut that presumption by showing that the death was reasonably attributable to another cause and not to this wound so inflicted by him. It is difficult, indeed impossible, to lay down a general principle on this subject which shall be equally applicable to the facts of each case, varying as they are. Hence much discretion is necessarily left to the judge before whom the case is tried in expounding those principles of law which will enable the jury to arrive at a correct verdict. Those facts are not before us, and with them we have nothing to do. It is not therefore our province to determine whether the law given in charge by the court below was applicable to the facts proved in the particular case. We can only determine whether what the judge does charge is good law. For this purpose it must be remembered that from the very nature of the duties assigned to him the district judge must necessarily consider the facts proved in his hearing in order that he may give an appropriate charge. It is not correct then to say that he has nothing to do with the facts because he is restrained from charging upon them. Neither is it true to say that because the judge charged that "if death ensued from a wound given in malice," as stated in the bill of exceptions, it results that he in effect charges either that a wound has been inflicted by the accused or that it was given in malice, any more than it can be said that he assumes the existence in the particular case of sufficient proof of any other state of facts pertinent to the crime charged, because he finds it proper in his judgment and in the exercise of the discretion and function assigned him to charge the law applicable to them if proven. The charge given in the present case was certainly a vigorous one, but it seems to be supported by eminent authority, and it is not for us to say that it ought not to have been given under the facts of this particular case. Nor does it appear that the charge complained of stood alone; on the contrary, it was qualified by the other language quoted State vs. Briscoe. from the Twelfth Annual case, and that part of it in relation to giving a wound in malice does not seem to have affected the verdict of the jury unfavorably to the accused, as notwithstanding the charge they brought in a verdict for manslaughter only. While the enunciation of the law embodied in the charge complained of is certainly a very strong one, and goes to the extreme limit of the law in this country, it is too well supported by authority to be pronounced error, when qualified, as it was in the case at bar, by other portions of the charge given. Neither do we consider it as thus qualified as militating against the general doctrine of the presumption of innocence and of reasonable doubt in favor of the accused, and still less of that in relation to the presumption of malice from an act deliberately committed with a deadly weapon, and of the intent to be drawn from all the evidence in the case as laid down in the standard modern authors and in the current decisions of other States to which we have been copiously referred in the able argument of the counsel for the accused. It is therefore ordered that the verdict and sentence appealed from be affirmed. No. 6815. SUMMERS & BRANN.NS VS. JAMES S. CLARK. S. L. BOYD, GARNISHEE. A judgment creditor who seizes under execution leased property belonging to his A seizure under fi. fa. of property bearing rents includes a seizure of the rents. APP D. C. Labatt for plaintiffs and appellees. Kennard, Howe & Prentiss for garnishee and appellant. The opinion of the court was delivered by SPENCER, J. Plaintiffs having obtained judgment for large amount against Clark, seized under execution a house and lot on Canal street, belonging to their debtor. This house was occupied at time of seizure by S. L. Boyd, under a lease from Clark, at $375 per quarter; for which quar terly rents Boyd had delivered to Clark his negotiable promissory notes. At the date of seizure one of those notes for quarterly rent was part due and had been paid. The plaintiffs, upon seizing the house and lot, served process of garnishment on Boyd, and propounded interroga Summers & Brannins vs. Clark. tories to him, touching his indebtedness for rent. Boyd answered, stating that he held the house and lot under a notarial lease from Clark, and that he had delivered to Clark for the rent, falling due quarterly, negotiable promissory notes. That if Clark held these notes he was his debtor, otherwise not. That he did not, however, know who held them. Plaintiff moved for judgment against the garnishee, as on confession. No legal principle is better settled than that an indebtedness, evidenced by negotiable promissory notes, can not be seized by garnishment of the maker. The notes themselves must be taken into actual custody by the sheriff. But there are other legal principles which may modify or vary this rule. Thus when a contract gives rise to several successive obligations to be performed at different times, it may happen that one or more of these obligations, at the time of performance, are due to other persons than the original contracting creditor. Contracts of lease are of this character. The rents and fruits of an immovable belong primarily to its owner; but the ownership may be transferred from one person to another pending the lease. As rents are considered to accrue day by day, and as being due by successive obligations, it may well happen that the rents of to-day are due to A, and those of to-morrow to B, though the lessee hold under one and the same contract all the while. In principle, therefore, where the right to receive the rents has passed from one person to another, the tenant can not plead, against the latter's demand for rent, payments he may have made, by anticipation, to the former. A tenant who has given negotiable promissory notes for future rents ought to be considered in a position similar to one who has paid his rents in advance. The question, therefore, presented for our decision is, when rents to accrue in the future have been paid in advance by cash or negotiable notes, does a seizure of the leased immovable by a judgment creditor of lessor operate a seizure of rents accruing after the seizure? As the lease in this case was not recorded in the conveyance office, the question is not affected by the registry laws. “All sales, contracts, and judgments affecting immovable property which shall not be so recorded, shall be utterly null and void, except between the parties thereto." C. C. 2266. See also C. C. 2264, which provides: "No notarial act concerning immovable property shall have any effect against third persons," unless recorded in the conveyance office. These are negatives pregnant with affirmatives to the effect that contracts "affecting or concerning" immovables (and therefore leases thereof), will have effect against third persons, if duly recorded; just as sales, mortgages, etc., affect them when recorded. It would seem that where a lease of real estate has been made in good faith and duly recorded, a creditor of 66 Summers & Brannins vs. Clark. * the lessor, seizing the property, will take it subject to the rights of lessee under the contract, unless the seizing creditor have a mortgage or privilege anterior to the registered lease. If, in such a case, the tenant have paid his rents in advance for the whole term, either in cash or in negotiable notes, the seizing creditor, having no anterior mortgage or privilege, can not, nor can any subsequent purchaser, exact rents until the expiration of the term. But, as we have stated, the tenant Boyd holds under an unrecorded lease, and any payments of rent which he may have made by anticipation, to Clark, are without effect as against creditors or subsequent purchasers of Clark. But it is contended by the counsel of Boyd that until the seizure made by plaintiffs ultimates in a sale of the property they can not take the rents; that it is only by title of owner, and after that title is acquired, that rents can be demanded. It is true that the right to take rents must be derived from or through the owner; but it is not true that the person exercising this right of the owner must be the owner himself. His creditors may exercise that right, and may even do so in cases and under circumstances where he could not himself do so, as we shall see hereafter. The law undoubt edly gives the creditor the right to seize the debtor's property; and article 466, C. C. declares that: "The fruits of an immovable produced while it is under seizure are considered as making part thereof, and inure to the benefit of the person making the seizure." Article 656, C. P., provides: "When the sheriff seizes houses or lands, he must take at the same time all the rents, issues, and revenue which this property may yield." How, in the face of these provisions, can it be maintained that the seizing creditor can not as such, and through the sheriff, demand and take the rents of the seized premises? The distinction, therefore, attempted to be drawn between the effects of a seizure and those of an actual sale under the writ is more seeming than real. The law does not more clearly or explicitly give the right of taking the fruits to the owner, than it does to the seizing creditor of the owner. Both rights are unquestionable, for both are positively given by the law. This distinction, too, when pushed to its legitimate results leads to legal absurdity. Thus A, being a judgment creditor of B for $100, seizes an immovable producing a monthly rent of $500. The law commands the sheriff to take those rents in satisfaction of the writ, and declares that they inure to the benefit of the seizing creditor. Before a sale of the immovable can possibly be effected, the rents satisfy and therefore extinguish the writ. But it is argued that these rents can not be taken and applied to the writ until after the sale, which can not be made because there is nothing due under the writ! But it is urged in the second place that the seizing creditor, under garnishment process, can have no other or greater right than his debtor. |