867 ttler eXGllpt only that I' suchconveyaoce shall· be presumedfraudulent as against creditors,atthat,time, of the perSon paying the consideration;" and, "if a Jraudulentintent is not disproved, . .* . * * a trust shall result in favor of such creditors to the extent necessary satisfy their just demands." 1 Rev. St.p. *728, §§ 51, 52. The above· provisions apply to the original purchase, and to Littlefield's· judgment, which was a claim then existing. Mead, as I have said, put about $15,000 into this purchase in his. wife's name. The statutory provisions do not apply. to the improvements made upon the Jots from three to five years afterwards, even thoughthe land be held to belong to Mrs. Mead as against creditors. The husband's expenditures in building upon them valuable houses stand in no better position than a voluntary gift from husband to wife; and, as against creditors, if intended as a gift, it must stand .orfall according to the rules applicable to such gifts,having reference to the debtor's means and a reasonable vision for his family, and the rights of creditors, existing and su bsequent. As respects the Littlefield claim, it is urged that a·fraudulent intent is disproved by the circUmstances, because the judgment was aheady abundantly secured, it said. by real estate standing in name; because he had other personal means to a considerable amount; and because the inconveniences attending real-estate transactions in one's own name while:a judgment in litigation attaches a lien upon them, furnish a perfectly innocent and justifiable reason for dealing in the name ofanotber, without any presumption of a fraudulent intent. These considerations are entitled to much weight; and they would be deemed controlling were they not overcome by other evidence and by Mead's subsequent conduct. Besides the general evidences of his intention referred to below, the evidence demonstrates that Mead did not intend to leave any real estate standing in his name as a security for the Littlefield judgment any further than he could help; and that, long before Littlefield's final judgment was perfected, Mead withdrew his interest completely. He himself procured the release of .one house in 1867 upon a nominal consideration. He sold the other to Mrs. Travis upon full consideration, in 1872; and a third in West Twelfth street, which was taken in his own name at the same time with the's8.le to Mrs. Travis, (probably as a su bstituted, thou/1;h inadequate, security for the judgment to satisfy Mrs. Travis,) he sold with full CO\TeDants and warranty a few months afterwards, without reference to the judgment. This last house was sold on execution on the Littlefield. judgment in 1876, realizing but $1,000, and leaving upwards of $4,000, besides 12 years' interest,still unpaid. My conclusion is that Mead not only'1heant to contest the Littlefield claim, hut meant never to pay it if he could help it; and that his taking the subsequent titles in his wife's name was partly with tbis intent. The two releases executed by Littlefield do not prejudice the claim under his judgment. The release of the house 103 West Forty-Third street in 1867 was evidently obtained by Mead himself, to enable him to convey that property, and thereby obtain a part of the consideration which was used to purchase the 'Sixth-Avenue lots in question. The rej
868
FEDERAL REPORTER,
vol. 37.
lease of the other house, 128 West Fbrty-Third street. was made in consideration of $200 paid by Mrs. Travis in February, 1873, about a year after its conveyance to her by Mead. This property had stood in Mead's name before the recovery of the judgment, and was undoubtedly sufficient security for the judgment. The conveyance was made" subject to aU assessments for widening Broadway, which are to be paid by the party of the second part, [Mrs. Travis;] also subject to the lien" of the Littlefield judgment for $3,183.83. It is contended by the respondent that this subject clause made this property the primary fund for the payment of the Littlefield judgment; and that the release of it by Littlefield estops him from making any subsequent claim under the judgment against Mead or his property. There are several reasons why this view cannot be sustained: (1) Even if the effect of the whole transaction between Mead and Travis was to make the land, as between them, the primary fund for the payment of the judgment, it would not have bound Littlefield, a prior lienor, unless he had notice of facts sufficient to constitute Mead a surety merely. Ingalls v. Morgan, 10 N. Y. 178, 187; Oheesebrough v. Millard, 1 Johns. Ch. 414; Guion v. Knapp, 6 Paige, 43; Palmer v. PU?'dy,83 N. Y. 147. There is no evidence that Littlefield had any such notice, actual or presumptive. The case is wholly different from that of a specific lien like a mortgage. This judgment was a general lien merely; and, when Littlefield was applied to for a release, the only knowledge with which he was chargeable was simply that the property was subject to the lien of his judgment, like any other real estate tha.t had belonged to Mead, without any obligation on his part to look to that property primarily or alone. The record of the subsequent deed was not constructive notice of its terms to Littlefield. Oheesebrough v. Millard, supra. Even if Littlefield had had knowledge of all the facts that now appear, it would have made no difference; for these facts do not show that the Travis property became the primary fund for the payment of Littlefield's claim, or that Mead became in equity a surety only. For (2) the deed does not say that Mrs. Travis was to pay the judgment; while· it does state that she was to pay the assessments. Had the same intent existed as to the judgment, it'wQuld have been so expressed. (3) The conveyance was only "subject to the lien" of the judgment, not to the payment of it, -a wholly different thing. ·Dingeldeinv. Railroad 00.,37 N. Y. 575. (4) It is certain that the amount of the judgment was neither agreed to be paid by Mrs. Travis, nor deducted from the consideration money. Mead does not so testify on either point, as he would have done if either were true. Thejudgment then amounted with interest to about $4,400. Mead says he considered the property conveyed worth $18,000, or $2,000 more than the price named in the deed. But there is no evidence that Mrs. Travis so consi.dered it; and, besides, she was to pay the Broadway assessments. But even this $2,000 difference is not half the judgment. Had it been understoodthat Mrs. Travis or ·her property was to pay the judgment, the whole amount of it would have been deducted from the consideration money; and Mead does not say that anything was deducted. And if the
800TT ". KBAD.
869
purchase price was made less in of the judgment, Mead would have taken some agreement from Travis to pay it. No such agreement was taken; nor is it probable that Mead would have continued an active litigation, as he did for several years aflerwards, simply for Mrs. Travis' benefit. The right of a debtor to make a particular fund the primary fund for payment of a debt is a purely equitable right. It rests either upon express contract,or upon the consideration of the transaction that raises such an equity Where the debtor's lands, for instance, are sold on execution, subject to a prior mortgage, the purchaser is presumed to have bought only the debtor's equity above the mortgage, and to have paid the consideration for that equity only; and the land therefore becomes thereafter the primary fund for the payment of the bond and mortgage. Tice v. Annin, 2 Johns. Oh. 128; McKinstry \' G1wtis, 10 Paige, 503; Vanderkemp v. Shelton"ll Paige, 34. In this case there was neither any such agreement, nor any abatement or deduction from the consideration in Mrs. Travis'purchase, such as to give Mead any equitable right to have her property pay the judgment. He has no such equity. Littlefield's release of that property for $200 was therefore immaterial. Had the release not been given, and had Mrs. Travis been compelled to pay the whole' judgment, she would have had a right t<l an assignment of the judgment for her benefit, to have it enforced against Mead in any legal or equitable proceeding like the present. IngallEl v. Morgan, supra. It is not improbable that this subject clause was inserted in the deed through the caution of Mead's attorneys for the very purpose of giving him the unquestioned rightto litigate Littlefield's claim, and to prevent the grantee from either discharging the judgment, or claiming that the covenant against incumbrances was broken as soon as the grant was made, which otherwise might have been done. See Bames v. Mott,64 N. Y.397, 400, 402. The defense that the Travis property became the primary fund was not pleaded; and very likely all the obtainable evidence nent to the question may not have been produced. It is possible that some agreement was taken by Mrs. Travis from Mead in reference to that judgment, and that the title to the house in West Twelfth street, which he had bought for $5,000 cash over the mortgage at the same time with the Travis deed, both being acknowledged on the same day, was designed to be ,a substituted- security So far as to allay any apprehensions of Mrs. Travis. I do not credit Mead'S statement that he believed the Littlefield judgment was "arranged upon the Travis sale," except in some such way as the above. He afterwards continued taking titles in his wife's name precisely as before, though the business was intended as his own. Upon the original purchase I must therefore hold that the Littlefield judgment attaches as a statutory trust. 2. The buildings. If Mead's improvements on the lots had been intended as a gift to his wife, its validity as against creditors would be determined in reference to the amount of his means thus diposed of, his at the time, his existing indebtedness, the reasonableness other of the gift as a provision for his wife, and the use afterwards made of it,
'.
Cl'edit()ta,: or aubsequenk ,The evidence, howeveIi, .satiafiesmetbatneither,:the .lots nor ,the b'lldldingswere intended as a gift .to ;Mrs. Mead, ;01'. really to. become her property, :as between her and her husba;nd, " lIer name· was a·, mere cover, for· Mead's own business. In his numerous purchases after the Littlefield judgment, all contracts -i\VeI'ein his oWn name. Payments were n1ade with his own checks. The iOn sales of property standing in his wife's name, were deposited in his own bank. All the rest.of,his real-estate transactions (except the house in West street, purchased in 1865, above referred to) -were .acknowledged to :substantially his own. Even the mortgages of $24,OOO,and $20,000, given by Fitzgerald and Bradley on a sale of lots 'in Mrs., Mead's !!toutly:claimed by Mead to be his, apparentlysupposing that the mortgages'had been given to him, whereas they :We1'e in fact executed to his wife;'. other persons, however, being intertherein. There is nothing to distinguish the purchase and holding of the lots in question atthetime they were bought, or the buildings ,built,thereon in 1870 and 1871, from the many other real-estate transae.tions :managed in the ,Same way. Mead stated, in answer to the inquiides of some of the. tenants, that this property was put. in Mrs. Mead's na':lle 'on account of the Littlefield judgment, and when that was out of ,the way, that it was to baturned over to him. He usually spoke of this property as his own, and so stated to many persons. He had the entire of it, and Ulltil his. insolvency deposited the rents in his ,G.wn bank-account. Some general statements that Mrs. Mead had prope,rty or notes of his, representing means of her own, on account of which the property in question was bought, find no corroboration. No such :notes are produced. Mrs. Mead was not called as a witness to verify .this or any .other claim in her favor. The inference is that she could to nothing which would support her case. I must find, therefore, that none of these transactions save that of the house in West Thirty-Sixtb street were designed as gifts at all, and that the use of Mrs. Mead's name was nothing .buta cover for her husband's interests. Doubtless these fnots would in no way prejudice the legal title of Mrs. Mead and her heirs as against Mead himself, or persons claiming merely in privity with. him. It is otherwise as respects creditors, where the real intent and object .of the transaction are of prime importance. In such cases, if the, transfer is 11 mere cover for the debtor's own use, and not intended to give the transferee any beneficial interest, it is void as to existing cr,editors, and equally so as to subsequent creditors, when employed to .their prejudice, .and to mislead them,. except in so far as our in regard to trusts in lands prevents; and, as above stated, the statute has no application. to what Mead subsequently invested in the buildings. The amount, invested by Mead in the houses cannot be determined within $<$0,000. Mead's sworn: statements at different times differ by more than that sum. His which would have furnished :valuable data as tQthis and other matters, have been kept concealed. J{ehad access.to thelll himself; but he refused to disclose where, or un-
las! ,respe:ctlt
SOOT'! ". MEAD.
871
der whose control, they were, or by whom he had hiinself been ted to see them when desired. His last testimony was from memoranda. made up by him, from which he read during his examination before the notary; but he ·refused to produce these memoranda for inspection or cross-examination by the opposing counsel. His earlier statement, made some years previous on affidavit, was that the buildings cost $169,000; next, that the buildings cost $128,484.50; lastly, that the buildings and nine lots cost $142,596.13; which, deducting $29,500 for the nine lots, would leave $113,096 for the buildiugs. As $76,000 only was raised by first mortgage on the property during the progress of the work, the amount raised from other sources must have been from $37,000 to $93,000. Mead states that he was worth at that time from $75,000 to $150\000, and did not owe over $10,000. On cross-examination he· fails· to show with any definiteness property worth over $50,000 or $60,000, alltold, except SUGh as: rested on ·mere eStlmate or conjecture, including what swod in his wife's· name, aside' from the house. in Thirty-Sixth street. The explanation given of his failure, and the facf that upon .his bankruptcy he had no assets, and owed at least $72,000 of unsecur:eddebts,' (excluding all of the alleged debt to James C. Mead of $32,000, excepting $8,000,) confirms the belief that practically all that he had above what he owed was invested in these houses. He states that his failure was caused by the shrinkage of real-estate values; and that, after 1873,: the loss of cash invested therein was, all told, $186,535. Other parts: of the evidence, however, show that his receipts from profits on wholly new transactions after the houses were allbuiltih 1871, and from mortgages on the property in question, together with the debts unpaid and, unsecured at the time of his bankruptcy, amounted to from $193,000to $210,000, which is made up as follows: Additional sumS raised on: mortgage of the property in question after 1872, (amount per sched..: ules, $155,750; per deed to J. C. Mead, $172,150,) $65,650 to $82,150; profits on lots bought from and after the summer ofl871, (McKee, Andrews, Beer, Gillies, Burns,) $55,552; debts unpaid, $72,000; making altogether frdm$193,000 to about $210,000; or from $7,000 to $24;000' more than all his losses, without counting the net rentals received by: him from this property during many years. Assuming that all these net rentals-some $5,000 or $6,000 a year-were consumed ill his ex-: penses of living; (certainly a liberal allowance,) and. that he earned nothing in his plumbing business from 1871 to 1878, it would seem, considering that his schedules show no assets, that unless some ,consid-: erable assets were concealed at the time of his bankruptcy,he and his wife together, aside from the Thirty-Sixth street house, had nothing in 1870 and 1871, over his debts, except what was put'into this property; and that, whatever his apparent property may have been, it was really absorbed in paying a part, but not all, of his indebtedness at that time in its continued and substituted forms. As to the amount of his indebtedness, Mead testifies tbatitdid not exceed $10 j OOO when he began judgment and Haight's claim) which building, inclUding the
872
FEDERAL REPOR'rER,
.vol. 37·
are still unpaid. From this, however, is evidentiy excluded his obligations on bond and mortgage, which would amount to a great deal more. The proof of debts in bankruptcy shows only two existing at that time, viz., those of Littlefieltl and Haight, amounting together, with interest, to about $6,000, as to which debts these transactions are plainly invalid. Besides those debts there are others proved to the amount of about $30,000 for moneys loaned to Mead, mostly upon notes dated in 1872 and 1873 But the evidence indicates that a number of these were for loans obtained previously,-how far back cannot be stated. To some extent they were probably substitutions for previous debts. No books of account were kept, and the check-books, which might have thrown light on this matter, have been concealed. A considerable amount was alleged to have beeh loaned by James C. Mead, running back prior to 1870; and from that year downward Mead appears as a borrower from his friends, and more and more from his bank, upon discounts of accommodation paper,-in November of 1870, $6,000; in November, 1871, $10,000; in November, 1872, $21,000; May, 1873, $35,000; July, 1873, $41,000. During 1873 the bank held security for these loans on the lots in question. These debts to the bank were discharged on the execution of the new. mortgages above referred to in the latter part of 1873. Mrs. Mead had no claim upon her husband for money or property brought to.him upon her marriage, or through her family. The contrary suggestions made by Mead in the earlier part of the examination were afterwards disproved. She had no estate of her own, and received from her father only $460, which was but a repayment of what Mead in furniture. I accept Mead's testimony that the house had bought in 1865, and taken in Mrs. Mead's name, "was intended to be hers from the start." It was their place of residence; it was a reasonable provision for her at that time; it was not prejudicial to Mead's existing creditors, and was not used to mislead subsequent creditors. When the buildings on the lots in question were commenced, the house in ThirtySixth street was worth, as Mead says, $30,000. It was sold in 1873 for $31,000, netting $22,500 over the mortgage. I shall sustain this provision for Mrs. Mead to the amount of $22,500, considering that sum as practically turned into the Fifty-Fifth street property, where the family afterwards went to reside. The subsequent use of the property in question by Mead was such as legally subjects it to the claims, not only of his existing creditors, but of subsequent ones misled by it. Mead alone was in apparent possession, as he undoubtedly had the sale management and control of it. He appointed agents of the property, who understood him to be owner. He usually spoke of it as his; made some long leases of it in his own name; and received and used all the rents, and contracted all debts in reference to the property. It was a valuable property. It gave him a reputation for wealth; and, in my judgment, was the backbone of his credit. The evidence shows that many of those who loaned him money did so on the faith of his supposed ownership of this property, to several of whoIU he
SCOTT V. MEAD.
873
spoke of it as his, as he was generally accustomed to do. His' partner and his agent supposed that it was his, and that it stood in his name of record. ' There can be no doubt that at that time, and for several years after, he considered the property as practically his, and so treated it. Mrs. Mead is chargeable with full knowledge of this course of dealing, and full assent to it. As a mere cover, she in no way interfered. She now offers no evidence to the contrary. Both are bound by the position practically assumed during the time when these subsequent debts were contracted on the faith of Mead's ownership. To permit a contrary position to be taken now on the strength of a merely nominal legal title in Mrs. Mead, which was originally intended only as a cover for Mead's use, would be to defraud the creditors misled by it. Any such attempt evidence, and ought to be interpreted to change front afterwards is as proof, of It fraudulent intent at the start. The cases are numerous :;howing that subsequent creditors thus actually or constructively misled are tlntitled to relief af.!;ainst such transfers, as much as creditors at the time. Savage v. Murphy, 34 N. Y. 510; Casev.Phelps, 39N. Y. 164; Sedgwickv. Place, 12 Blatchf. 163, 179, 95 U. S. 3, Shand v. Hanley, 71 N. Y. 319. The cases of Carr v. Breese,'81 N. Y.'584, and Graham v. Railroad 00.,102 U. S.148, 153, 160, are inapplicable, 'the circumstances being quite different. ' Mead's investment of his money in building on his wife's lots, when the intent of both was that Mead should have all the fruits of it from rentals or the proceeds of sales or mortgages, as the facts here prove that he did have to a considerable extent, in part execution of the trust, is virtually a "transfur" of Mead's personal assf'ts to Mrs. Mead "in trust for his use;" and as such is by the statutes of this state "void as against creditors, existing or subsequent." 2 Rev. St. p. *135, § 1; Curtis v. Leavitt, 15 N.Y. 9, 132,148,149; Wilsonv. Robertson, 21 N. Y. 591-594; Youngv. Heermans, 66 N. Y. 381; Dewey v. Moyer, 72 N. Y. 70, 76, 103 U. S. 301. The statute applies to" all transfers, verbal or written." This expenditure was a "verbal" transfer of his means. That it was in trust for his "use" is as cleado me as if it had been declared in writing. Though a trust in lands cannot be created by parol inter partes, this does not apply to trusts for creditors, by operation of law; nor, I think, to moneys laid out on another's land, but for one's own use; n\lr to the pro'ceeds to be derived therefrom, when such was the common intention. Section 1, p. *135, and section 2, p, *137, N.Y Rev. St., are thus harmonized. To a considerable extent the real trust has been executed in the application of rentals and of the moneyS raised on mortgage oftIle property to the security or payment of Mead's debts at the close of 1873 and subsequently. In either point of view, subsequent creditors misled are entitled to relief. When Mead's insolvency became certain in 1875, the insecurity of this property, though standing in his wife's name, became apparent. !tWas accordingly conveyed to his cousin, James C. Mead, of Sing Sing, in June, 1875, for the consideration as stated in the deed of $300,000, SUbject to mortgages for $172,150, and taxes of 1874. A memorandum of
37. ·:Mr. Mead's qf.the year previous,lirlc1uded it among his "effects," and stated its $359,000, .i. e., from .$125,()00 to $175,000 . above Ule incum1:;>rances uponit'l . Under tbis deed the ownership of the property was claimed by Mead from June, 1872, till his death, in 1884, after wbicq.i twas firsqearn:ed in this suit that a reconveyance, llot recorded,! by ,JaWes C. ¥ead to Mrs. Mead on the day the deed' from her to Mm,and placed in the hands. of a relative; the transactWn being as security to James, C. Men,d f()r a balance of about .$8,OOOowingto him by the bank,r:upt.lnthe mean timethe bankrupt bad the rentl;l Ij)f tbeproperty un<1era power of attorney from James C. M.ead. The execution of this ,deed had been kept .con(leJlled thwugplong.examinations of both James C. ,Mead and Abraham :Mead, an!l has led to no. small amount The complaint charges that the C(lnveyanGe to James a..Mead was in fraud o.f creditors; OO.no doubt that such was its actual intent. The reconMrs. Mead has since been . ;" ;,Upi;:maJUpe testimQuy;.I dQ notfind that at the time ofthe original lots .tb\lre WaS. an actual and positive intent on Mead's ; part to b:il.\d.er.,.dE:lllly',or defraud aPY creditor except Littlefield, whom in the collection .of his · be did bytpij!'!pE:lans intend to.hiqcter, and debt. But! do find that the subsequent investU}ent. by Mead in 1870 exection of houses on ·and 1871 Qf a large amount qfMs' means in ,wts standingJn his wife's llamewas greatly inexcess ofwhat was legally provision for reference. to his then existing uncertaina.nd speculative nature of the chief business in obligations he had assumed in it, the)i1till.larger.ones he'1mon ·after that neither this invest.J;Uent,northe origin,alpurohase L was .intended as a gift to Mrs. ; but was 1\ mere for his own use; that the provision. prElviously made .. Mead, 'Which is llerein st;lstained to amount of about $30,,for "QOO, was all. that his circumstancEls warranted; and that the investment I jn .these . of SQ large a part, if, not the whole, of his means over .!lnd liabUities, and his subsequent possession and ;-uS'e and representationQf the property as his own, upon the faith of which .su.bsequent Jofl.l1flw,eremad,e tobim, were with the rights ·,and interesta of creditors misled, .and were in law fraudulent as to them, as well asvoip,under the provisions ofthe Revised Statutes of this state. . is 'entitled to a decree declaring purchase .of the lots subject toa trust for tp.e payment or the amount,now due /lud .'owing upon the Littlefield judgment; (2) the bf!,Jance of the amount in· by in the orlginJll· purchase of the lots, after deducting the -above, wUl go to Mrs. of the net proceeds of the Thirty-Sixth street house; (3) that there be ne;x:t paid froin the proceeds of the property the rest ofthe debts as they now stand Plgllinst, Mead ill the bankruptcy proceedings pro rata; excluding, ,however, therefrom the debt .to.. ¥aclay for a deficiency judgment on foreclosure. 'The presumptiol;l from the circumstances, and the ordinary of il) this city, is that Maclay's bond an,d
875 mortgage were not takenup,oJ+any personal qredit of Mead t : property in question; and there is no eYidenceorsuggestion to the oontrdry. If the proceeds of the 'sale of the prbperty are insufficient to satisfy the above sums in full after ing thereon at the time the complaint hereinwas filed, togetherwitl1any subsequent taxes or assessments, the defendants will be directed, to.account for the rents and profits received, so far s:s necessary to aboveatnounta in full, with interest and.costs, (Loes v. Wilkiitson,110 N. Y. 210-215,18 K E. Rep. 99;) and such rents and profits, so far as received by Mrs. Mead, will be deducted from the amount above for her benefit; jf not otherwise collectible, and that be necessary; in orduenport the other c1il.iIns all!l,,!,ed der,to tOgether with costs and disbursements of suit. . .
UNITED STATES'll. MEAGHEB. 1
W.D. Teo:aB. November. 28,1888)
1.
COURT$-FEDER,AL JURISDICTION......,CRThlBS.
2.
certaili ·land. providing that the stateshil:ll ret! in coilcurrent jurisdiction. wiih; tbe United States so far that all process"civil or criminal, issued .under tutbority of .the ",tat9, may be executed by the s.tate omcers upon any persoll Bnlenable to the sarna within the limits Of, the land so ceded. con'fers on thli jurisdiction;" within the meaning of Rev. St. U; S.'§ 5839. prescribirtgpqnishtnent for Crimes committed in placeswitbintheex·; elusive,jurisdiction of tile United States., , SAME.,,-BuRDEN OF PROOF.
.A. cession by a state to the United States of "exclusive jurisdiction" over
"' .
".
.
The burden is On the government to shbw that the crimewas committed on land which was ,under the exclusive jurisdiction ·of the United States.' ! Under a statute pro,viding that one lIlay be found guilty of any the, commission of 'Which is necessarily included in the one with which he is chatged.one charged with murder may be found guilty of mansl$ugbter. OF C:RIME.
.,
8.
4.
SAMB......,:MURDlllR-DEFINITION.
Murder is person of $ound mem()ry and discretion unlawfully and feloniously klIlsany human being. in the peace of the sovereign, with .malice: prepense or aforethought, express or implied. :,' '
G.
SAME-MALIClll.
All the facts in the oase, however trivial, should be considered as bearing On the question-of m a l i c e . ' , '1. SAME-ACCIDltNTAL KILLING·. , " . . ' . The killing ,of a person by tbe accidental discharge of a pistol by one en· . gaged in no unlawful act; and without negligence, is homicide bymlsadvent.,: ,url!', and is no QfiIlle7, ! 1
6.
Malice. as applied to murder, need not denote spite or malevolence. hatred or ill will. to. the person killed. nor that the, slayer killed his victim in cold blood. as with Bsettled design;' but a killihg from 'an evil design and' malignant spirit may be, of malice, implied by law born the absence of lawful excuse. ,
SAME.
lPublioation delayed byfiillure to obtain copy ofopiHion at time of