fully liquidated and settled. This, the judgment of the court declared, was an accomplished fact, and ordered the cancellation of its mortgage. As he did not owe any part of the debt due the state or the stockholders, this cancellation was all the protection he or his vendee needed. His legal purpose being attained, his other complaint ceases to be of any importance. The receiver of the Consolidated Association having been regularly made a party defendant and cited, he having formally excepted to the jurisdiction of the court ratione personae, and his exception having been overruled, and no bill of exceptions reserved, final judgment having been rendered against him on default, and no appeal having been taken therefrom, it seems to us quite unreasonable that the debtor should entertain apprehension about the pending suit in the United States circuit court; for, most assuredly, a copy of this opinion and decree would be competent evidence therein. Our Code of Practice provides "that the same cause cannot be brought before two separate courts, though they be possessed of concurrent jurisdiction. The judge before whom the action was brought first shall sustain his jurisdiction, and the defendant shall be entitled to have the cause dismissed by the other court, and to recover costs. "Nevertheless, if the defendant, instead of claiming to be dismissed, answer in the two actions, in the two separate courts, the first judgment rendered by either of them shall be valid and executory against the party cast in the action. All proceedings shall be stayed in the other court, and the plaintiff dismissed after paying costs." Article 94. Succession of Townsend, 37 La. Ann. 409.

On the question of lis pendens, the federal jurisprudence is the same as our own. In Stanton v. Embrey, 93 U. S. 554, the supreme court held that the pendency of a prior suit in another jurisdiction is no bar to a subsequent suit in a circuit court, even though the two suits are for the same cause of action and between the same parties. Gordon v. Gilfoil, 99 U. S. 169. But the debtor Jacobs did not urge the plea of lis pendens in either suit, and the state court rendered the first judgment, and it is valid and executory, and by it he may be protected in the United States circuit court. This argument and these deductions are just as true and as strictly applicable to the complaint of the purchaser, Mrs. Jacobs, who is also an appellant in her personal capacity, and occupies the relation of a third person to the judgment appealed from, and appears by petition and citation of appeal. The record shows that the property was adjudicated to her at $25,000, during the pendency of the executory proceedings, and with full knowledge of the contents and purport of the certificate of mort

gages which is annexed. How she can entertain any hope of relief we cannot conceive. If her appeal is to serve any purpose whatever, it would appear to be rather to increase than to lessen the burdens affecting the property purchased, as she has no interest in-the disbursement of the purchase price among the parties before the court.

Her complaint of the want of citation is equally without force. So far as the funds to be distributed are concerned, she is but a stakeholder, and stands in the room and stead of the sheriff, who made the sale under an order of the court, and who was directed and required "to retain in his hands, subject to the further order of the court, and out of the proceeds of sale to pay the sum of $8,000, with eight per cent. per annum interest, from March 7, 1882, and five per cent. attorney's fees, and cost." The sheriff accepted service and waived citation. At the sale Mrs. Jacobs became the adjudicatee, and, for the mutual convenience and security of all parties in interest, the following agreement was made: "Parish of St. James, March 17th, 1888. Be it known that on this 17th day of March, 1888, it has been agreed and understood by and between the purchaser of the property, Mrs. Ellen Marson, wife of Octave Jacobs, and Mrs. Julia Kunemann, that, in consideration of the purchase of the plantation this day sold in the matter of Amant Bourgeois v. Octave Jacobs, No. 1,323 of the docket of the honorable the 22 judicial district court for the parish of St. James, which plantation is fully described in the said proceedings, retaining in her hands the amount of the third opposition claimed herein, said amount to carry interest stipulated in said note from this day, the said purchaser binds herself to pay the amount of the judgment to be rendered on such third opposition. [Signed] Sims & Poche, Attorneys for Mrs. Octave Jacobs. Chas. Louque, Attorney for Mrs. Kunemann." She has since retained the money in her hands, and has it now. This paper furnishes the proof of the fact. She occupies just the same position the sheriff did, and is just as amenable as he is or was "to the future order of the court." This agreement contains what, to our thinking, is the equivalent of a confession of judgment. Certainly, no further or additional citation was contemplated by the parties. The judge of the vicinage had all the parties before him, and was familiar with all the parties and all of the incidents of the trial, and, as he seems to have entertained an equitable view of the matters in hand, we find no occasion to reverse his finding. Judgment affirmed.

The CHIEF JUSTICE and BREAUX, J., not having been present when this case was submitted, take no part.

WATKINS, J. Ernest Peuch obtained an order of seizure and sale against defendant's plantation in the parish of St. James in the enforcement and foreclosure of a special mortgage securing payment of a note of $5,500, with interest. Pending advertisement of same for sale, Mrs. M. Daret, Pierre Pootz, and plaintiff presented a petition to the court to the effect that Mrs. M. Daret is the present owner and possessor of the plantation mortgaged, by purchase from Mrs. Celestine Daret, and that, long antecedent thereto, Armand Duplantier had subscribed for 37 shares of the stock of the Consolidated Association of Planters of Louisiana, and mortgaged said property to secure the same, and a loan of $9,250 additional, and on which said shares all loan installments and contributions have been paid; that the amount of said stock mortgage is greater than the actual value of the land, and, if paid, nothing would remain of the proceeds of sale, when realized, to apply to petitioner's mortgage; but, as said indebtedness no longer exists, the inscription of the mortgage should no longer remain as an apparent incumbrance on the land, to their detriment; and they allege themselves to be entitled to have same canceled, and they pray for the cancellation thereof. The state of Louisiana, being a party defendant, excepts that the same question is at issue in a suit now pending in the United States circuit court, entitled "Cressey v. Consolidated Association," and adopts the exception taken by John Calhoun, receiver, which is to the effect that it declines the jurisdiction of the civil district court, on the ground "that he cannot be sued as receiver before the court that appointed him, * unless by permission of said United States circuit court, which has not been granted." From a judgment overruling these exceptions, and making the

rule absolute, the state and receiver have appealed.

The exception urged is the same in principle as the one tendered and overruled in Lanaux v. Recorder, 36 La. Ann. 975, and to which suit the state was a party; and in the course of our opinion we said: "This is a proceeding to compel a ministerial officer to do what is alleged to be his manifest duty in a matter wherein it has been judiciously declared the state has lost all interest," etc. Also, the court said: "The point made that this court is without jurisdiction, because receivers have been appointed for the Consolldated Association by the United States circuit court, is untenable when the object of the proceeding is to erase from the mortgage book of the state an incumbrance created by her law, and which the circuit court of the United States would have no authority to order." We cannot see any force in the objection, and are of opinion that our opinion in the Lanaux Case is controlling. This court is clearly competent to entertain the rule, and decide it, notwithstanding the Consolidated Association of Planters of Louisiana is in process of liquidation in the courts of the United States. In State v. Consolidated Ass'n, 43 La. Ann. 838, 9 South. 564, all of the questions herein raised were gone into, and decided in keeping with the views expressed in the Lanaux Case. From our opinion in that case it appears that the case of Cressey v. Consolidated Ass'n, referred to as then pending in the United States circuit court, has since been decided by the supreme court of the United States, (11 Sup. Ct. 387,) and on the principles announced in Association v. Lord, 35 La. Ann. 438, (a parallel case,) maintaining the prescription, and directing the cancellation of the mortgage. This case has been kept under advisement for several years on account of the pendency of the Cressey Case; and now that it has been finally decided, there is no occasion for longer delay. For the reasons assigned in the decided cases referred to supra, our judgment must go in favor of the plaintiff, the evidence being conclusively in favor of the rule. The judge a quo decided the case correctly in making the rule absolute. Judgment affirmed.

1. The judgment appealed from sustained a motion in arrest on the ground that the verdict was not responsive to the charge, and remanded the prisoner to await a new trial. The verdict was not responsive to the indictment. The offense of which the accused was found guilty is not of the same generic class. The same kind of evidence is not necessarily applicable to the one as to the other.

2. The judgment being not responsive, and erroneous, the defendant may be tried anew. (Syllabus by the Court.)

Error from district court, parish of Natchitoches; Andrews, Judge.

George Benjamin was convicted of assault with a dangerous weapon, and a new trial was granted, from which the state appeals. Defendant appeals from that part of the order which denies his release from further prosecution. Affirmed.

M. L. Desmukes, for appellant.

H. P. Brazeale and John R. Land, Dist. Attys., for the State.

Although several offenses created by different statutes cannot be included in one count, yet, where an indictment in a single count charges an offense which includes within it another and less offense, the defendant may be acquitted of the former and convicted of the latter. Therefore a verdict of an "assault with a dangerous weapon" is responsive to a charge of "shooting with intent to kill," of which an assault with a dangerous weapon is the first essential step and element, both in fact and in law. 6 La. Ann. 286; 23 La. Ann. 326; 28 La. Ann. 434; 35 La. Ann. 53; Whart. Crim. Pl. §§ 246, 247; Proff. Jury, § 428.

BREAUX, J. The defendant was charged with the crime of shooting one Sandy Burns with intent to kill. He pleaded not guilty, and was tried by a jury, and found guilty of assault with a dangerous weapon. He moved in arrest of judgment on the ground that the judgment was not responsive to the charge; and prayed for his release, as in effect acquitted. The motion in arrest was sustained by the court, but the court ordered the prisoner held for further proceeding and trial on the indictment. From the judgment sustaining the motion on the ground that the verdict was not responsive, the state appeals. The accused appeals from that part of the sentence holding him for further trial. The ground on the part of the state on which a reversal of the judgment of the lower court is asked is that the charge in the indictment, "shooting with intent to kill," embraces the lower crime of "assault with a dangerous weapon;" that they belong to the same class; that the same kind of evidence is applicable to one as to the other; that they differ in degree, and not in kind. The defendant does not question the correctness of the well-settled principle of criminal law that, where an accused has been indicted for an offense, he may be convicted of another of the same generic class. His contention is that they are not of the same generic class, and he refers to the case of State v. Johns, 32 La. Ann. 812, in which it was held that the crime of stabbing any person with intent to commit murder and that of inflicting with a dangerous weapon a wound less than mayhem could not be set out in one count of the indictment. He also refers to the case of State v. Pratt, 10 La.

Ann. 191, in which it was decided that a charge of "inflicting a wound less than mayhem is not necessarily included in a charge of shooting with a dangerous weapon with intent to kill and murder;" and to the Murdoch Case, 35 La. Ann. 729. In the last case the accused was charged with shooting with intent to commit murder. The verdict was: "Guilty of wounding with a dangerous weapon, less than mayhem." The court in the case just referred to sustained a motion in arrest of judgment, on the grounds that the verdict was not responsive; that the two offenses were separate and distinct; . that the charge did not include the offense found by the jury, as the proof of the major, did not necessarily include proof of the minor, offense. The question in the first case referred to the Johns Case-was one relating to the duplicity and uncertainty arising in charging an accused with two distinct offenses in one count; the rule being that several distinct offenses cannot be included in one count of the indictment. The offenses, in that case, were distinct, required different punishment, and were not of the same generic class. In the Pratt Case the question is similar to that decided in the Johns Case. The only difference is that in the Pratt Case the accused was charged with intent to kill. It is well established that proof of the major, must necessarily include proof of the minor, offense, in order that the crimes may be considered of the same class. It may well be proven that an accused is guilty of shooting with intent to kill and murder without proving that he is guilty of inflicting a wound less than mayhem. Thus far the decisions to which our attention is directed by defendant's counsel relate to separate, substantive crimes, not of the same generic class. The line of difference is not as clearly defined in the case at bar. The proposition that the charge of shooting with intent to kill may include that of guilty of an assault with a dangerous weapon is undoubtedly true, and would offer no difficulty of interpretation were it not that a wound or assault may be inflicted with a dangerous weapon without any shooting at all. The means of committing an assault with a dangerous weapon are numerous. It would be confusing in criminal practice were it held that, upon the charge in the indictment, a verdict such as that found is responsive. Mr. Wharton illustrates by reference to assaults upon officers, assaults with battery, or assault with a felonious intent, where all but the assault may be rejected. 1 Whart. Crim. Law. § 627. If (for illustra tion) we reject as surplusage the words "with a dangerous weapon," a verdict for assault would be responsive. Setting aside the rejection, and adding the words rejected, the offense is distinct, and not cognate. The evidence to prove the offense charged would not necessarily cover only assault with a dangerous weapon. It might be proven, un

der the charge as originally made, that an assault was made with any dangerous weapon, in order to enable the jury to find a verdict for the minor offense. The issue as originally presented might be changed from shooting with intent to kill, to an assault with a knife, or any other dangerous weapon. The case at bar will be in line with those to which we have referred. Under their authority we hold that the offense is not included in the charge.

The defendant next contends that in effect he has been acquitted of the crimes charged by the verdict of the jury, and that he is entitled to his discharge. The verdict was annulled on his motion in arrest. The test, says Mr. Bishop, "as to the effect of a nonresponsive, uncertain, or imperfect verdict which has been received or recorded, is: If it sufficiently finds anything, whether for or against the defendant, it will be interpreted by the court, and judgment rendered on the one side or the other, for what is thus found; otherwise, it will be treated as null, the judgment will be arrested, or be erroneous if rendered, and the defendant may be tried anew." 1 Bish. Crim. Proc. 1005. Judge Cooley says: "If, after verdict against accused, it has been set aside on his motion for new trial or on a writ of error, or the judgment has been arrested, the accused may again be put upon trial for the acts before charged against him, and the proceedings had will constitute no protection." Cooley, Const. Lim. 227-328. See, also, State v. Oliver, 39 La. Ann. 470, 471, 2 South. 194. The judgment was arrested on defendant's motion. The principles announced therefore apply. Judgment firmed.

(45 La. Ann.)

af

overruling his exception to the jurisdiction of the district court, and remanding the case. That said court, after the rendering of said judgment, to continue its term, was adjourned from day to day by one of the judges of said court, the other being absent, and that no application for a rehearing, to which he was entitled, was filed in said court; and that said judgment had not become final, because three judicial days did not intervene between the date of the judgment and the final adjournment of the court. That the first judicial district court assumed jurisdiction of the case, and was proceeding to try the same, and that he had filed an exception to the jurisdiction of said court, as the case was still on the docket of the court of appeals, and the district court could have no jurisdiction of said case until the judgment overruling the exception and remanding the case became final. Taking this statement as correct, it is evident that the court at this stage of the proceedings has no jurisdiction to grant the relief prayed for. The relator has not exhausted his remedy in the lower jurisdiction by an application to the court of appeals for a writ of prohibition. Article 104 of the constitution invests the judges of the court of appeals with jurisdiction to issue writs of mandamus, prohibition, and certiorari in aid of their appellate jurisdiction. This case falls under the provisions of this article, and the judges of the court of appeals had the undoubted power exclusively to issue the writ in aid of their appellate jurisdiction. Failing to obtain relief from that court, it will then be timely to invoke the supervisory jurisdiction of this court if the facts warrant it. It is therefore ordered that the rule granted herein be discharged, and the relief prayed for be denied, at the cost of plaintiff in interest, the relator.

1. Plaintiff in an action for damages for a libel has the right to specifically affirm in his pleadings, and on a trial to prove, the nonexistence of the conditions upon which would be dependent a right of exemption from liability, grounded on the fact that the matters complained of were charged on a judicial proceeding. He cannot be cut off from establishing an allegation to that effect by an exception of no cause of action.

2. The fact that matter defamatory and libelous in its character was charged in the petition of a plaintiff against a defendant does not of itself carry absolute exemption from liability for damages claimed by reason of said defamatory and libelous charges; other facts must concur to bring about that result.

3. There is a great difference between an absolute exemption from liability for damages for acts done in the course of judicial proceedings under a given state of facts proven, and an

absolute exemption from liability to a suit for the purpose of testing whether such a state of facts exists as would convey with it such protection from damages, and between the situation of parties at the end of a lawsuit after evidence adduced, and that of parties at its beginning, standing on pleadings.

(Syllabus by the Court.)

Appeal from district court, parish of Caddo; S. L. Taylor, Judge.

Action by Charles J. Randall against William E. Hamilton for libel. There was judgment for defendant on exceptions to the complaint in the nature of a demurrer, and plaintiff appeals. Reversed.

M. S. Jones, Alexander & Blanchard, and Leonard & Thatcher, for appellant.

Wise & Herndon, for appellee.

Communications in a judicial proceeding are privileged, and no person is liable, civilly or criminally, in any respect, to anything published by him in the course of his duty in said proceeding.

This privilege extends alike to parties, counsel, witnesses, jurors, and judges.

The privilege depends in no respect upon the bona fides of the defendant.

The only question is whether the occasion existed, and whether the allegations complained of were pertinent to the occasion. Townsh. Sland. & L. par. 221;. Odg. Sland. & L. p. 186; 6 Mart. (N. S.) 477; 21 La. Ann. 376; 36 La. Ann. 78; Id. 951; 43 La. Anu. 454, 9 South. 106.

Where it appears on the face of the petltion that the defamatory matter was published in a judicial proceeding in an action, and was pertinent to the matter in hand, the petition is demurrable, notwithstanding the allegation that the publication was false and malicious. Townsh. Sland. & L. p. 559.

NICHOLLS, C. J. The defendant in this case having filed an exception of no cause of action to plaintiff's demand, the allegations of the petition will have to be given in full. Plaintiff avers that on or about June 22, 1892, William E. Hamilton, through his attorney, instituted in the district court for Caddo a suit entitled "The Shreveport Electric Railway and Motive Power Company vs. The City of Shreveport et al.," by filing a petition verified by his oath made and subscribed to before Cal D. Hicks, notary public of said parish, on June 21, 1892, whereon he obtained from the Honorable S. L. Taylor, judge of said court, on June 22, 1892, a writ of injunction. That in said petition and affidavit said Hamilton represented himself to be the president of a pretended corporation, styled in said petition "The Shreveport Electric Railway & Motive Power Company," and therein falsely described as a corporation duly chartered, organized, and existing under the laws of the state of Louisiana. That in said petition, among others, the following allegations are made, viz.: "That said pretend

ed company had been granted and vested with certain rights, privileges, and franchises, by an ordinance of the council of the city of Shreveport of July 23, 1891, and that such rights, privileges, and franchises were held by and vested in said company. That, in the exercise of such rights, said Hamilton, as president of said company, employed a gang of laborers, and was with them engaged in constructing a railroad along Southern avenue, in said city, on June 20, 1892, when the police officers of said city, acting under the authority of the mayor and council of said city, arrested him and said laborers, and forcibly prevented them from continuing such work. That said policemen, mayor, and council, in their interference with the rights vested in said company by said ordinance, claimed that said ordinance, and all rights thereby vested, were repealed by said council at its session on June 9, 1892. That said pretended repealing or demand is an attempt to divest vested rights, and is illegal, null, and void. That Herman Herold, Charles J. Randall, W. D. Scofield, John C. Wimbish, and Henry H. Youree, members of the council of said city, entered into a conspiracy with certain persons connected with and interested in the City Railroad Company, a rival corporation, to pass said pretended repealing ordinance. That said conspiracy was conceived and executed solely in the interest of said City Railroad Company and its owners, and without any regard to the rights of said Hamilton Company or of the public. That such conspiracy, so concocted, was kept a profound secret from the mayor, and from the remaining members of the city council, and from the people; and, maintaining inviolable the injunction of secrecy imposed on them by said parties whose interests alone they were to subserve, the said members of said council refused to entertain a motion to postpone for investigation, made by a member not a party to said conspiracy, and refused to hear the opinion or follow the advice of the city attorney, because they had already taken the advice of the retained counsel of said City Railroad Company. That said conspiracy, and all the acts in pursuance thereof, on the part of the aforesaid members of the city council, were illegal, wrongful, tortious, and a fraud on the rights of said Hamilton Company. That all of which foregoing fully appeared from a certified copy of said petition, annexed and made part hereof. That said suit was dismissed by judgment of the district court for Caddo, on exceptions of defendants thereto, for reasons assigned in said judgment, which said exceptions and judgment therein are made part hereof by reference. That he is now, and was at the time of the adoption of the ordinance of July 23, 1891, purporting and intending to grant certain franchises fully set forth in the petition of said W. E. Hamilton in said suit, a member of the city council, and that he voted as a member of