THOMAS TORRANCE vs. RICHARD HURST.

Every thing written of another, holding him up to scorn and ridicule, and calculated to provoke a breach of the peace, is a libel.

Questions to a witness suggesting the answer are leading interrogatories and inadmissable. Impressions, opinions, and faint recollections not evidence, witthout the facts on which they are

founded.

This is an appeal from the circuit court of Amite county.

The record in this case shews a demurrer to the declaration, consisting of ten separate causes, and all of which were overruled by the court below, with the exception of the first, which was sustained. These questions are also raised by the bill of exceptions, taken at the trial.— Some of the causes of demurrer are not rue in point of fact, and the others are not supported by the law apricable to the case. Every thing written of another, which holds him up to scorn and ridicule, and which is calculated to provoke to a breach of the peace, is a libel-Holt. 223; Scandalous matter is not necessary to make a libel. It is enough, if the defendant induce an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous,-Id. 224. The charge in the declaration is for returning a false inventory of a deceased person on oath. And although the statute may not require the administrator to return the inventory on oath, yet such a charge is calculated to lessen a man in the estimation of his fellow citizens, and falls completely within the rule above laid down by Hok. We therefore think that the matter set forth in the declaration is hbelous, and the court below acted correctly in overruling the demurrer.

The first question raised by the bill of exceptions, is the admission in evidence to the jury of the 2d interrogatory of H. G. Runnels, on the ground that it is a leading interrogatory.

There is no principle better settled in the law of evidence, than that leading interrogatories are not admissible to be put to the witness. What is meant by leading interrogatories are questions which suggest of the

witness the answer to be made, and not barely the words, did or did not, preceding the question. 1 Star. 123; 1 Phil. 222; 6 Bin. 490. Questions to which the answer yes, or no, would be conclusive, are objectionable; and so would any question which plainly suggested to the witness the answer which the party hoped to extract-1 Starkie, 124. We will take a view of this interrogatory and see whether it comes within the rule above laid down.

After asking the witness whether he had seen a letter purporting to be written by Hurst, and directed to John R. Brown, at Jackson, he says, if Yea, was it or not concerning Thomas Torrance, the plaintiff? and was it not concerning his conduct as administrator of John Lowry, deceased? and whether Hurst did or did not say, that Torrance, in returning an inventory of said estate had sworn a lie? or had prejudiced himself? Each of these questions naturally draw the answer yes, or no, and come expressly within the rule above laid down. Although the first and last questions in said interrogatory, had they stood alone, would have been legal and proper questions; yet, being associated with so much objectionable matter, the whole interrogatory should have been rejected.

The answer to this interrogatory is still more objectionable, than the interrogatory itself, with the exception of the fact of having seen the letter referred to, and the term perjury being used, every response is an opinion, an impression, or faint recollection. After stating that he had seen a letter signed Richard Hurst, he thinks it was addressed to John R. Brown, and he is impressed with a belief, that it was written in Amite county; and he is inclined to the belief that it was dated but a short time previous to his seeing it. After stating that he does not know the hand writing of Hurst, he says, but from circumstances he was induced to believe that it was written by Hurst, but does not state what those circumstances were which induced that belief. He is of opinion that said letter had reference to the conduct of said Torrance as administrator of a deceased person; he feels confident that the term perjury was used, or that Torrance had forsworn himself in a case where he was administrator; but does not think from his very faint recollection of the subject that the letter expressed that he had sworn to a lie in court. If it is necessary to cite authorities to shew that these impressions, and opinions, and induce

ments and faint recollections are not legal evidence, the doctrine will be found in 3 Starkie, 1736 & 7; 1 Phillips, 222; and I believe in every other treatise on the law of evidence. In order to make opinions and impressions evidence, the witness should state the facts and circumstances upon which he formed those opinions, so that the court and jury may be enabled to see whether his deductions were correct.

Admitting, therefore, that the interrogatory had been a legal one, the whole answer ought to have been rejected, with the exception of that part which states that he saw the letter, and that it contained the charge of perjury.

The 3d question raised by the bill of exceptions is, as to the rejection of a letter [from the jury,] written by John R. Brown, addressed to said defendant, informing him that an impeachment had been set on foot in the legislature, against him, [Brown] and that Torrance [the plaintiff,] was his accuser; and called on said defendant, Hurst, to give him, Brown, information, relative to the causes and circumstances which had given rise to this proceeding; and also as to the motives by which Torrance [the plaintiff'] had been actuated, alledging that Hurst [the defendant] was in possession of information on this subject; and the letter containing the libel in plaintiff's declaration mentioned, was shewn to be a reply to this letter, of Brown to Hurst.

A letter written confidentially by one to another, under an impression that its statements are well founded; if the writer was acting bona fide, with a view to the interest of himself, or the person whom he addressed, is not libelous. For if a communication which is not meant to go beyond those who are immediately interested in it, were to be made the subject of an action for damages, it would be impossible for the affairs of mankind to be properly conducted-Holt, 212, 213.

This letter, although a specimen of high seasoned bombast, and a violent outrage upon epistolary correspondence, yet asks for information on a subject in which the writer was deeply interested. Here is a letter written by a judge of probate, addressed to a man who had stood high in the estimation of the people of his county, and calling for information of this individual relative to the matter which had given rise to this impeachment, and telling the defendant that the plaintiff [a man also high in the

confidence of his fellow citizens, being at that time a member of that body before whom Brown was to be tried,] was his accuser.

This letter, we think, was a part of the "res gesta,” and might, or might not have gone in mitigation of damages. Whether the reply to this letter was written confidentially, in good faith, and for the interest of said Brown, or whether it was conceived in the overflowings of a malignant and depraved heart, is most clearly a proper inquiry for the jury. We are therefore of opinion that the court below erred in admitting to go to the jury the 2d interrogatory of H. G. Ruhnels, and the answer thereto; and that it also erred in rejecting from the jury the letter of John R. Brown.

The judgment of the court below must therefore be reversed, and a venire de novo awarded.

Judge Black concurred

LEONARD POMET vs. A. SCRANTON, ET AL.

A subsequent mortgage, duly recorded, and without notice, takes precedence of a prior unrecorded

one.

OPINION OF THE COURT-BY THE HON. JOHN BLACK. It appears by the answer and proofs, that the mortgaged premises were sold by Pometto Scranton; Pomet taking mortgage to himself, to secure the payment of the purchase money; that he neglected to have the mortgage recorded according to the provisions of the statute; that previous to such mortgage being recorded, the same premises were mortgaged to the bank of the state of Mississippi, as an additional security to the bank, for the payment of a note made by said Scranton, and endorsed by others, which latter mortgage was duly recorded, without the bank having notice of the previous mortgage; the equitable lien in favor of Pomet, attaching to the bond for the purchase money, was merged in the security of mortgage taken by him on the premises; and that he has lost his prior lien, which he had by virtue of his having the oldest mortgage, by failing to record the same. The bank, having the youngest mortgage regularly recorded, without notice of the previous one, is entitled to be first satisfied.

JAMES A. WITHERSPOON vs. DEMPSY P. CAIN

The possession, by the drawee, of an order "pay to J. A. W. $240; and this shall be your receipt for so much paid on said judgment," is prima facie evidence of payment.

It is discretionary with the judge who presides at the trial to permit a party to exmine a witness, after the cause has been argued before the jury, and the charge of the court divered; but the granting or refusal of such permission constitutes no ground for a writ of error.

BRIEF OF S. M. & T. T. GRAYSON.

First, After the examination of witnesses on both sides is closed, a party may introduce a witness, unless there be trick or arifice-4 Binn. page 200.

Second, The retaining of a bill by the drawee is sufficient evidence of an acceptance, but not of payment: Chitty on Bills, 195, 304, 388; 2 Camp., 439.

OPINION OF THE COURT-BY CHIEF JUSTICE TURNER

On the one hand, it is but reasonable to suppose that the bill was left for acceptance; but there is no proof of that fact. On the other, the order is receipted. On its face, it is like a check, rayable to bearer.When a man pays an order like this, he calls no wtness; he asks no receipt. Then, if he should be sued by the payee, ought not the payee to produce something to incline the scale between the two equities; the two presumptions?

The receipt is produced, to be sure; but it is dme by order of the court. The defendant held it as his voucher for paynent, and it was his duty to keep and preserve it, to protect himself against the drawer of the bill, as well as against the payee.

As a question of law, there is no doubt on the subject. This decision does not conflict with those referred to. The cae in 2 Camp., 439, is not at variance with this. We entirely concur vith Lord Ellenborough, in the opinion he delivered in that case. The defendant had drawn bills on the plaintiff-accommodation bills; and, fron the nature of the case, we are to presume that the parties were merchants, acquainted with the