Green v. State.

This statute in no way changes the rule to be applied in this action for polygamy. These parties came into this State subsequent to the passage of that law. At common law cohabitation and repute were always adequate in question of legitimacy, and such proof would be sufficient in most civil actions. In a criminal case however presumptions do not apply. In cases of polygamy it has always been held that in order to convict the defendant, the marriage must be proven by evidence other than of cohabitation and repute. In the case of Burns v. Burns, 13 Fla. 369, this court, having this question of the sufficiency of the proof of marriage before them, say in the head-note: "In civil writs generally presumptive evidence, as distinguished from direct evidence of marriage, is prima facie sufficient as where a man and woman have cohabited together, speaking habitually to and of each other as husband and wife, and of the time and circumstances of their marriage, and the like; but in suits where criminal conversation, adultery, etc., constitute the essence or foundation of the action, a more rigid rule is required." In the opinion in the same case the court cite and approve from Bishop on Marriage and Divorce, the following: "When parties are living together as husband and wife, the legal presumption, favoring innocence, is that they are persons married to one another, and not persons living in the violation of morality and decency and law. But when the issue to be decided in the case is such as to show that the one against whom it is decided had violated morality and decency and law, if the other party were married to a third person, then no presumption of such marriage can arise simply from cohabitation as husband and wife. In prosecutions for criminal conversation, and upon an indictment for adultery, there must be direct evidence of the marriage, in distinction from presumptive evidence." Such positive evidence is equally necessary upon an indictment for polygamy in order to a conviction. 1 Bish. Marr. and Div., $$ 441, 442, etc.; Brown v. State, 52 Ala. 338; Case v. Case, 17 Cal. 598; Clayton v. Wardell, 5 Barb. 214; 2 Whart. Crim. Law, § 1696; Chamberlain v. Chamberlain, 71 N. Y. 423; Clayton v. Wardell, 4 N. Y. 230.

In this case there is not the semblance of evidence that the defendant was married to Emeline, and consequently that he was guilty as charged in the indictment.

The judgment is reversed and a new trial awarded.

Judgment reversed.

Greeley v Dixon.

GREELEY V. DIXON.

(21 Fla. 413.)

Assignment for creditors — condition for release —for return of surplus.

An assignment for creditors, with preferences, providing, (1) for the pro rata payment of the other creditors in full satisfaction and release, and (2) for the return of any surplus to the assignor, is void on both grounds.*

ROCEEDINGS to test rights to goods. The opinion states the

PROCE

C. P. & J. C. Cooper, for appellant.

Jno. T. & Geo. U. Walker, for appellees.

CHIEF JUSTICE. The appellees, as plaintiff in the court below, sued out an attachment against John W. Howell, which was levied on certain goods in the possession of the appellant, who as assignee of Howell, claimed the goods and commenced proceedings to try the right of property in the goods under section 22, p. 524, McClellan's Digest. On the trial that ensued in the Circuit Court the presiding judge charged the jury that the deed of assignment from Howell to Greeley was void.

The appellant assigns here as errors:

1st. The court erred in giving its charge to the jury, construing the assignment from Howell to Greeley and declaring it void.

2d. That there was error in submitting the cause to a jury and entering a verdict and judgment thereon, when there was no issue joined or traverse of claimants' sand affidavit upon which to base a verdict and judgment, because from the case in the record it appears that the jury was sworn to try an issue joined.

3d. The court erred in entering upon the judgment that it did enter, as appears of record, same being for sale of property.

4th. There was error in the verdict and judgment finding the property subject to appellees' attachment.

It is claimed by counsel for the appellees in this court that said deed of assignment is void as to creditors upon two grounds

1. Because the assignment, after preferring certain creditors, stipulates for a release from the creditors who are to be paid pro * See Collins v. Davis, post.

VOL. LVIII - 85

Greeley v Dixon.

rata out of the proceeds of the property assigned after the payment of the preferred creditors.

The language of the assignment on that point is as follows: "To distribute and pay the remainder of said proceeds ratably and in equal proportion to my other creditors in satisfaction and release of all my debts by me owing."

2. That said deed reserves to the assignor any surplus of said proceeds. The language is as follows: "To repay me, my executors and administrators and assigns, the residue of said proceeds, if any there be."

As to the first ground urged the authorities are numerous and conflicting, and counsel have, with commendable industry, brought to our attention a large number of cases bearing on the subject. The question in this State is an open one.

In Walters v. Whitlock, 9 Fla. 87, an assignment was involved which contained a clause of the same legal import as the first above quoted, as to release by creditors of the assignor, but in that case the point was conceded by counsel and the court said. "Here we will remark that it has not been contended by counsel for the appellee that the assignment is not valid," and this question was not passed on by the court.

In England the doctrine that a failing debtor can by deed of assignment of his whole property stipulate therein for a release from his creditors has been uniformly maintained; such stipulations have been held valid even against a claim of the crown. King v. Watson, 3 Exch. 6; 5 Eng. L. & E. 431.

The Supreme Court of Rhode Island also sustains these stipulations. See Nightingale v. Harris, 6 R. I. 321, and the courts of the following States Pennsylvania, Mechanics' Bank v. Gorman, 8 Watts & Serg. 304, Maryland, McCall v. Hinkley & Woodward, 4 Gill, 128, Kittewell v. Stewart, 8 Gill, 472. In both these cases however there was a divided court. Alabama, Rankın v. Lodor, 21 Ala. 380; Maine, For v. Adams, 5 Me. 245; Arkansas, Clayton v. Johnston, 36 Ark. 406; s. c., 38 Am. Rep. 40. See also Brashear v. West, 7 Pet. 615, and Habrey v. Whiting, 4 Mason, 206.

The leading case declaring the contrary doctrine is Grover v. Wakeman, 11 Wend. 189, s. c., 25 Am Dec. 624. The court in that case says: "An assignment containing a provision making a preference to certain creditors in the distribution of the assigned property to depend upon the execution by them of a release to the

Greeley v. Dixon.

debtor of all claims against him is void, and being void in part as to creditors is void in toto."

In Ohio, Atkinson v. Jordan, 5 Ohio, 178; s. c., 24 Am. Dec. 281; North Carolina, Hafner v. Irwin, 1 Ired. 490; s. c., 34 Am. Dec. 390; Mississippi, Robbins v. Embry, 1 Sm. & Marsh. 208; Missouri, Drake v. Rogers, 6 Mo. 317; Georgia, Miller v. Conklin, 17 Ga. 430; Texas, Carlton v. Baldwin, 22 Tex. 724; Tennessee, Wilde v. Raulings, 1 Head, 34, and in Colorado, Duggan v. Bliss, 4 Col. 223; s. c., 34 Am. Rep. 80, the principle laid down m Grover v. Wakeman, supra, is followed. We are inclined to adopt the conclusions and approve the reasoning of the courts which hold stipulations in a deed of assignment requiring a creditor to release his debtor as a condition to participating in the proceeds of his estate, to be void.

It is claimed by the counsel for the appellant that the language used in this assignment, "in satisfaction and release of all my debts by me owing," is not a condition addressed to creditors, but is an instruction to the assignee. Its effect is the same. In the one instance you say to the creditors, you cannot be paid unless you release your debtor, m the other you say to the assignec, do not pay the creditor unless he releases the debtor. In either the creditor is required to release all indebtedness, while only receiving a part of his debt. In the cases above quoted in 7 Peters, 615, and in 4 Mason, 206, Chief Justice MARSHALL, in delivering the opinion of the court in the former case, said. "Yet we are far from being satisfied, that upon general principles, such a deed ought to be sustained," and Mr. Justice STORY, in the latter, said. "While giving effect to the contrary principle from what he understood at that time to be the weight of authority, that if the question had been new and many estates had not been passed upon the faith of such assignments, the strong inclination of his own mind would have been against their validity." It is said in Burrill Assign. 267: The rule is clearly settled against the validity of the stipulations in question, and the decisions in Ohio, Missouri, Mississippi and Georgia, have thrown great weight in the scale." Further, pages 267 and 268: "It is true the Supreme Court of the United States sustamed an assignment containing a stipulation for a release, but this was done with marked reluctance, and only because the court felt itself bound by the construction which had previously been given by the courts of Pennsylvania to the statute of that

Jones v Townsend's Administratrix.

State." Again, "taking into consideration the opinion expressed by Chief Justice MARSHALL, in Brashear v. West, supra, it seems probable that should a case be brought before the Supreme Court of the United States which could be decided on general principles, and free from the controlling influence of State construction, the decision would be against the right to stipulate.”

Mr. Bump says "the doctrine" holding such stipulation void "is supported by the weight of authority." Bump Fraud. Conv. 427. Counsel for appellees insist also that the clause reserving the surplus to the assignor quoted above vitiates the assignment.

We think, notwithstanding there is some conflict, the weight of authority is against such a reservation when the assignment contemplates a pro rata payment to certain creditors contingent upon their releasing him from all indebtedness. In case any of the cred

itors decline to accept the offer, the portion coming to them would be returned to the assignor. This is a contingency upon the happening of which a part of his estate would be returned to him while he had outstanding unsatisfied debts. Most of the courts that hold that an assignment which exacts a release as a condition to participation in the assignor's estate is valid, hold also that such assignment must convey all the property of the debtor. See cases cited as to the validity of stipulations for release, infra, and also Bump Fraud. Conv. 429, 430. There was no error in the charge

A false publication in a newspaper that a candidate for public office is under indictment for a felony is not privileged. (See note, p. 685.)

L'

IBEL. The opinion states the point. The plaintiff had judgment below.

Randall, Walkers & Foster and R. B. Archibald, for appellants. H. H. Buckman, for appellee.