COPLEY v8. FLINT & Cox. WESTERN DIST. sum at which this charge or risk would be estimated, ought October, 1840. to be added to the principal price, since the vendor profits that much by the purchaser taking that risk upon himself:" Pothier Contrat de Vente, No. 345. The same doctrine is found in various modern authors, who have commented on the existing legislation of France, which, on this point, is believed to be identical with ours. Troplong uses the following language: "In order to arrive at a just appraisement of the value of the thing, according to the common price, we ought to take into account all the circumstances which might diThe intrinsic minish its importance and emolument. Thus, if the purvalue of the land chaser took upon himself all the risk of eviction, notwithsale, and of the standing numerous mortgages or pretensions to the property plaintiff's pretensions and the itself, set up by third persons, regard should be had to the nature of his ti- diminution of advantages which may result to the purchaser examined and in- from the sacrifice which he has made of his right to a warquired into, as matters put ex- ranty, and to a full and free tradition of the thing sold.” pressly at issue Troplong, de la Vente, No. 815. at the time of tle, should be in an action for sale on account of lesion. without warran ry, what were tensions worth? action of lesion? rescission of a To apply these principles to the case now before us, it was a proper subject of inquiry, what were the pretensions of the But in a sale plaintiff worth, rather than what was the intrinsic value of of a precarious claim to land, the land? He does not appear to have acquired possession. ty, it is a proper He purchased at a forced sale, paid only two hundred and subject of inqui- seventy dollars for two thousand acres of land, and would have the vendor's pre- been obliged, probably, to embark in a law suit, before he rather than, could enjoy any advantages resulting from his purchase, with trinsic value of the disadvantage of having to prove, as essential to make the land in an out his title, the authority of the police jury, a legal exercise Under the plea of that authority, and an exact compliance with all the forms of the general issue, in an ac- required by law, for the forced expropriation of the property tion for the re- of an absentee. Under the plea of the general issue, such for leison be evidence would, in our opinion, be admissible in the case. yond moiety, evidence is ad- But, more especially, was it proper under the special plea in missible, to the record, to go into the inquiry whether the parties did plaintiff's pre- not contemplate at the time, rather a renunciation of any claim was really right acquired under the public sale, in order to avoid trouble being confined and perhaps litigation, than such a real sale of property for to the mere in- an inadequate price, as would entitle the plaintiff to be relieved against his own contract, by an action of lesion. scission of a sale show what the tensions, title or worth, without trinsic value of the land. MILLER vs. HOLSTEIN. It is, therefore, ordered and decreed, that the judgment of WESTERN Dist, the District Court be avoided and reversed, the verdict set October, 1840. aside and the case remanded for a new trial; with instructions to the judge, not to refuse to admit evidence in relation to the title of the plaintiff, as set forth in this decree, and in support of the allegations in the answers of the defendants; and not to instruct the jury, that they had only to inquire into the intrinsic value of the land in controversy; and that the appellees pay the costs of this appeal. APPEAL FROM THE COURT OF THE SIXTH JUDICIAL DISTRICT, FOR THE PARISH OF RAPIDES, THE JUDGE THEREOF PRESIDING. Other systems of law may be referred to for light, when the great and lead- So, where the plaintiff was charged with having "sworn falsely," and proved This is an action of slander. The plaintiff alleges that the defendant, with a view to defame and injure his character and good name, and destroy his reputation, did, on the 30th June, 1837, and at other times, maliciously, falsely, and wickedly charge him, (meaning plaintiff,) with being "a rascal, and This case was argued and decided at the October Term, 1839, but judge Martin being dissatisfied with the decision, and the defendant's counsel desiring it, a rehearing was granted. 48 914 16L 389 51 329 16L 389 107 699 16 389 f125 821 MILLER vs. HOLSTEIN. WESTERN DIST. having sworn falsely," alleging at the same time, "that he had October, 1840. the documents to show for it." That these words were uttered and proclaimed in public, on said 30th June, 1837, and at other times, in substance, to one John Frazier, and other persons of this parish, thereby attempting, as far as lay in his power, to destroy the character of your petitioner, and bring him into disgrace and shame. He claims from the said King Holstein, five thousand dollars in damages for these unprovoked, malicious, slanderous and false charges, and asks for a jury, and prays for a verdict and judgment in his favor. The defendant denies that he has given the plaintiff, who is an old acquaintance and friend, any cause of action, and that none is set forth, or can be charged, as he hath never upon any occasion done the plaintiff an injury. He fearlessly submits his cause to a jury of his countrymen. Upon these pleadings and issues the cause was submitted, on the evidence and arguments of counsel, and a charge from the court to the jury. Frazier, sworn, says the defendant said Miller (plaintiff) "was a rascal, had sworn falsely, and that he had the documents to show for it." This was in June, 1837, and took place in witness' presence, and that of James Calvit and others. J. Calvit, sworn, says that in his presence the defendant declared that Miller "had sworn a damned lie, and he could prove it, and had the documents to show it." Vincent, sworn, says some time in October, 1837, the defendant wanted witness to tell the plaintiff, Miller, that he was a damned rascal. Witness told him to do it himself, and he replied, he had done so, and further, that he could whip the plaintiff with one hand tied to his back. In a subsequent conversation, defendant told witness, he did not know Miller to be a rascal, but he believed him to be one. George, sworn, says he knew Miller for the last six or seven years, and that he is an industrious, honest young man, as far as he knows, and that this is his general character; says defendant is in moderate circumstances, but owns several slaves. Other witnesses testified to Miller's good character. The defendant's counsel excepted to the testimony of Cal- WESTERN Dist. vit, because it was different from the charges and words laid October, 1840. in the petition. Also, to the testimony of Vincent, because it relates to a different transaction. The defendant's counsel moved the court to charge the jury, 1. "That the words charged in the petition, are not actionable." 2. "That the words charged in the petition, are not of themselves actionable, and the jury should not give a verdict in favor of the plaintiff unless actual damages are shown." 3. "That the words charged in the petition, do not amount to a charge of perjury." 4. "That unless the words charged amounted to a charge. of perjury, there should be a verdict for the defendant, unless actual damages are shown." 5. "That it is not any words of an abusive or offensive character, which will maintain an action of slander, without showing special damages to have resulted from them." 6. "That unless the words charged, (if true,) would subject the plaintiff to a criminal prosecution and punishment, the jury ought to find for the defendant, unless special damages are proven." All of these charges were severally refused by the judge a quo, as they were asked for, and a bill of exceptions taken. to the refusal by the defendant's counsel. The judge charged the jury as follows: "It would seem if the common law were in force here, on a subject of this kind, that this action could not be maintained. But in a case like the present, we must look to our own jurisprudence in order to decide it. It is a matter of regret that our law has laid down no distinction in actions of slander, but according to a decision of the Supreme Court, the right to bring an action of this kind, is referred to a general law, that every act of man which causes damage to another, gives the person injured a right of reparation in damages.' Another rule, which has been laid down by the court, is that the jury is to consider the language complained of in its common meaning, and according to the effect it was calculated to produce on those to whom it was addressed.' You will then accordingly MILLER vs. HOLSTEIN. MILLER vs. HOLSTEIN. WESTERN DIST. Weigh the language used by the defendant towards the plainOctober, 1840. tiff, and if you consider it, in a popular sense, conveyed the idea that he committed a legal crime, you will find for the plaintiff such indemnity as in your sound discretion ought to be given, according to the injury done to the plaintiff in his feelings or calling. Of the measure of damages, the jury are especially the proper judges within the limits asked for. The court is not prepared to say that mere words of heat, such as that another is a rascal, ought to occasion damages against the person uttering it, unless, at least, the person in relation to whom they are used could show he was injured, by being deprived of employment. But any charge, in common acceptation of a criminal nature against another, if punished by law, will justify the action of slander under our laws, and if you think this was fairly the meaning of those words, you will find for the plaintiff." "If the language used, charged the plaintiff with moral turpitude, falsely and maliciously, in such a way, as, in your opinion, to injure his character and standing in society, you may find for the plaintiff, without showing special damages." To this charge of the court, the defendant's counsel excepted. The jury returned a verdict for the plaintiff, of five hundred dollars in damages, and from judgment rendered thereon, the defendant appealed. This case was argued at the October Term, 1839, by Messrs. Dunbar and Hyams, for the plaintiff. Messrs. Winn and Brent, for the defendant. Strawbridge J., delivered the opinion of the court. The plaintiff charges the defendant with slandering him, by saying "he was a rascal, and had sworn falsely, and that he had the documents to show for it;" the words being uttered "wantonly and maliciously," and claims five thousand dollars damages. The defendant denies any cause of action being set forth, and generally all the facts. The charge in the petition has been proved; the jury gave |