Volume 14 — Florida Reports

<p>!. A vacancy in the office of Licutemur.-Covenior can be filled by a special election.</p> <p>d. The appointment of a person 10 fill ;i vacancy in tho ofiite of LieutenmU-il-ovenior entitles the person to hold the office nnip the same be filled by an election ns provided by law.</p> <p>:l. The allegation of the respondent, that he was “ duly elected,” insufficient. : facts must be averred, showing that lie -was elec'/,*!, in manner prescribed by law.</p>

This is an appeal from a final decree in chancery rendered by the Circuit Court for Columbia county. The appeal is prosecuted by the defendants, Robert AY. Broome cl al. Tlie decree directed the payment of five hundred and sixty-five dollars to II. Bisbee, the respondent. M. Whit Smith being an attorney at law, was employed Ay William N. Myers to defend him against certain criminal charges then pending before a military commission.

This is an appeal from the Circuit Court of Escambia county, First Judicial Circuit. Harry C. Campbell, sheriff of Escambia county, and ex-officio administrator of Lewis Starling, deceased, Sues Eobert B. S. Hargis at law, the foundation of liis action being a promissory note of Hargis, payable to Starling. After the institution of this suit, Hargis files a bill against Campbell as administrator of Starling. The bill sets up— First.

. This is a bill in equity brought by Walter Gwynn, Agent for the Trustees of the P. and G..Eailroad Company, against the appellant, tax-collector of the county of Columbia, alleging that complainant represents 17,516^- acres of land in said county belonging to said Trustees. That said lands are not of a greater value than $1,379 12-100.

<p>Where an appeal, taken under the statute before the Code, was dismisseci for want of a bond, a new appeal may be taken under the Code at any time within two years after the entry of the judgment, if the judgment is of such character as authorizes an appeal to be taken from it within two years.</p>

This is a motion' to dismiss an appeal from an order of the 'Circuit Court for Duval county. The nature of the motion is stated in the opinion of the. ■court.

<p>An''appeal- from tbe-decision of tbe Circuit Court overruling a demurrer to a replication, other issues in tbe record being undisposed of, in an action of-ejectment, and no final, judgment having been rendered: Held, That the appeal must be dismissed, as no appeal lies from such decision in an action at law.</p>

<p>Where there is a demurrer to the pleadings in the record, and not disposed of by the Court, and not waived or abandoned by new pleadings or otherwise by the party demurring, it is error to submit a cause to a jury.</p>

<p>A new trial should not be granted as against the weight of evidence, unless the preponderance is such as to warrant the opinion that the verdict was produced by improper influences; and particularly where two juries have rendered the same verdict upon the same state of facta.</p>

This was an action of trover brought in 1867, to recover damages for the conversion of a quantity of logs belonging to plaintiff, of the value of $1000, alleged to have been convertedby defendan t on the first of October, 1861. Defendant pleaded-not guilty. Afterwards plaintiff amended1 his declaration by adding a count for-money had and received, upon which issue was joined.

<p>1. The entry of a judgment against a party who had appeared without giving the eight days notice required by paragraph 2'of Section 194 of the Code, and without proof that no answer had been received, is irregular. This irregularity and the peculiar circumstances of-this case justified the Court in opening the judgment entered herein.</p> <p>t. It is improper to unite an action for specific performance against one party, and an action of ejectment against another, in the same suit. Where, making a person a party defendant to a complaint seeking a specific performance has this effect, a motion to be made a party defendant should be denied.</p> <p>-i. The general rule is, that new parties defendant should not be brought in against the will of the plaintiff, unless the presence of such new parties is necessary to the determination of the action.</p> <p>■Í. To a complaint for the specific performance of a contract, the parties l<? the contract are generally the only proper parties.</p>

<p>1. Where the subject of an action is real or personal property, and the plaintiff seeks to set aside fraudulent judicial proceedings in reference thereto, he should make all persons parties who were actors in such proceedings, and who claim a present interest in the specific property. Such a complaint is not liable to the objection that there is an improper joinder of severol causes of action against different' persons; It sets up one cause of action against all of them.</p> <p>A A cause of action against the sureties upon the bond of an administrator, arising from a breach of the condition of the bond, cannot be united in the same complaint with a cause of action against the administrator arising from acts of the deceased'intestate in fraudulently disposing of his property. This is an improper joinder of several caus.es of action against different parties in the same complaint.</p>

<p>t. Where the return does not disclose an exception taken during the trial or after the judgment, the case cannot be reviewed in this Court upon, any matter arising upon the trial, and the,appeal will be dismissed.</p> <p>3. In order to review a judgment after trial without a jury, a case or exceptions must always be made. This case should contain the facts found by the Judge and his conclusions of law, stated separately, the exceptions taken during the trial, and also those taken after judgment . . to his final conclusions of law.</p> <p>3. Where the appellant brings up simply the papers containing the pleadings in the case and the judgment of the court, and the return contains no evidence of any exception taken at any time, or any case or exceptions, or any separate statement of conclusions of law found by the Judge, a-waiver of a case and exceptions by the appellee cannot cure the defect,</p>

This is an appeal from a decree rendered in the Circuit Court for Jefferson county. The case is stated in the opinion of the court:.

This is a motion to dismiss the appeal. The grounds of .the motion, so far as they are considered by the court, are stated in its opinion.

The action was instituted by Schultz against the Pacific Insurance Company, to recover the sum of six thousand dollars with interest, being tlie amount of a valued policy of insurance upon the freight of the North German barque “ Mutter Schultz,” on a voyage from Pensacola to England. The policy was issued to plaintiff, who was two-thirds owner of the vessel, and covers by express terms the interests of all concerned in the subject insured.

Judicial Circuit. In 1869, Gensler and Silberstein, the Respondents, brought ¡their action in the Circuit Court for the county of Alachua, ■against the- appellant, as a common carrier, for .the recovery of the value of certain goods shipped by them from New Yqrk to Gainesville in.this, State, and alleged to have been lost while in the-custody of the appellant.

This is an appeal from the Second Judicial Circuit, Gadsden county. The facts, so far as they are considered by the court, arc-stated in the opinion.

The plaintiff sued Robinson as endorser of a draft drawn by Hardee & Haddock upon John T.. Gilchrist* of New York, and accepted by him, payable to the order of Robinson, dated May 29,1866, sixty days after date, for one thousand dollars.

This is an appeal from the Third Judicial Circuit, Columbia county. Held: and the commissioners, after hearing all the facts, wdth proof of the value, determined to reduce the assessment; that subsequently this action, was set aside.

<p>1. It is not essential that an indictment should commence with the words, “ The Grand Jurors of the State of Florida.”’ It is sufficient if it commences with the words the “ jurors” of the State of Florida, where the other entries in the record show that it was found by a grand jury.</p> <p>2. The record of a judgment in a criminal case contains this entry, showing the swearing of the petit jury: “ Thereupon came a.jury, to-wit, (naming twelve persons) who being elected, tried, and sworn the truth to speak upon the issue joined.” Following the indictment and plea is also this entry: “The jury was duly impanneled and sworn to try the issue.” Held: That this is sufficient to show that the jury were properly sworn in accordance with the statute, to “ well and truly try the issue between the State of Florida and the defendant, according to the evidence.”</p> <p>3. Section Y of chapter 6 of “ An Act to Provide for the Punishment of Crime and Proceedings in Criminal Cases,” provides that whoever corruptly gives, offers, or promises to any executive, legislative, or judicial officer, after his election or appointment, either before or alter he is qualified or has taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment in any matter, question, cause, or proceeding which may be then pending, or may by law come or be brought before him in his official capacity, shall he punished, &c. An indictment charging a corrupt'offer to H., a member of the House of Assembly of the State of Florida, and representing the county of Gadsden as one of the representatives thereof, need not in addition contain the words, “ the said Hill then and there being a legislative officer of the State of Florida,” or other words to that effect. That the party is a legislative officer is a necessary legal conclusion from the facts set up. The special matter of this whole fact (that he is a legislative officer) is set forth in the indictment with such certainty that the offence judicially appears to the court. This is sufficient.</p>

This is an appeal from the Fourth Judicial Circuit — Duval .Ootinty. The complaint alleges that plaintiffs are the owners of' 640 acres of land near Jacksonville ; that defendants are in possession and withhold the possession ; demand judgment for the possession, $10,000 damages and costs. 1. The answer denies that plaintiffs are the owners or entitled to the possession. 2.

This is an appeal from an order made by the Circuit Court for Duval county, upon a summary application after judgment, which order directed the sheriff to pay over certain moneys in his hands upon which the appellants claim to have a lien.

<p>For the purpose of review upon appeal from a judgment, the record must contain exceptions signed by the judge who presided at the trial, and the appellate court will dismiss an appeal unless the exceptions were duly signed. A case merely stated and signed by counsel will not be examined. This has been repeatedly held by this court before and since the adoption of the Code. The law does not authorize this court to reverse a judgment upon the mere statement of counsel.</p>

<p>Appeal from the Circuit Court for Alachua county, Fifth Judicial Circuit.</p> <p>This is a motion to dismiss the appeal. The grounds for the motion, so far as they are considered by the court, are stated in the opinion.</p>

The action is upon a promissory note, which reads as follows: “ $3,000. Lake City, El a., 5th March, 1867. On the first of November next, we, or either of us, promise to pay W. L. L. Bowen, or his order, three .thousand dollars in gold coin, for value received. (Signed) J. J. Dickinson, Gf. L. Denton, Chas.

This is a motion to dismiss the appeal. The grounds for the motion, so far as considered by the court, are stated in the opinion.

<p>The Constitution of this State provides that certain officers “ may be re-removed from office upon the recommendation of the Governor and consent of the Senate.” This power being without limitation, the judicial department of the government cannot create limitations upon it. Neither notice to the officer, nor the making and proving any charge, is essential to its exercise. That an officer may be thus removed is a constitutional incident or limitation upon his right to hold the office, in the same manner as is the limitation of the term to four years, and to be thus deprived of the office without notice or hearing, is not in conflict with that clause of the Constitution which provides that no person shall be deprived of his property without duo process of law.</p>

An action was brought in the usual form under the Code on drafts in favor of respondent drawn by the President and accepted by the Treasurer of appellant. Judgment was rendered by the clerk in vacation, under Section 194 of the Code, against the company for’$432.00. Counsel for appellant assign for error, “ that the judgment in this cause, rendered in vacation by the clerk of the court below, is unconstitutional, unauthorized and void.”

This is an appeal from a judgment rendered in the Circuit Court of the First Judicial Circuit in Santa Rosa county. A statement of the case is contained in the. opinion of the court.

• Appeal from the Circuit Court for Duval County, Fourth Judicial Circuit. This is a motion to dismiss the appeal in this case. The grounds of the motion are set forth in the opinion of the court.

<p>1. The act of November 25th, 1828, (Thompson’s Digest, 183,) declaring mortgages upon personal property not “ effectual or valid to any purpose whatever,” unless recorded in the records of the county where the property is at the time of the execution of the mortgage, &c., is not applicable to mortgages upon vessels owned within the United States; such mortgages and the record thereof ale tó be considered with reference to legislation by the Congress of the United States within the powers of Congress respecting the “ regulation of commerce.”</p> <p>2. The allegations in a complaint or in the accompanying affidavits filed-upon an application for injunction and receiver, should show by direct and positive statements the facts entitling the party to the relief prayed and to the exercise of the summary process of the Court, and not merely upon information and belief unsupported by other evidence. The exception to this rule is that a preliminary injunction is sometimes allowed upon allegations founded upon information and belief, until, under an order to show cause, a hearing' can be had arid better evidence adduced.</p> <p>8. The rule prohibiting attorneys at law from becoming sureties in attachment, appeal, &c., does not prohibit them from executing bonds or un, dertakings as principals in behalf of parties.</p>

<p>Appeal from the Fourth Judicial Circuit, Duval County.</p> <p>A statement of the case is found in the opinion of the court. ■</p>

<p>The “ act concerning Forcible Entry and Detainer” was not repealed by tlie Code of Procedure; tlie proceedings regulated by that act are “ special proceedings” within the meaning of the Code.</p>

<p>An order transferring a cause to another circuit, made by a Judge who is disqualified to try the cause, must specify the county to which the cause is sent; merely ordering the transfer to another Cirouit effects nothing, and the order should show the cause for making it. .</p>

This is an appeal from an interlocutory order of the Circuit Court of the Third Judicial - Circuit for the county of Columbia. The case is stated in the opinion of the court.

<p>The private examination of a married woman required by the acts ofFeb- . ruary 4,1835, and March 6,1845, for the conveyance of her real estate, is properly taken by the clerk.</p>

<p>i. The statement in the affidavit verifying a complaint, of the facts relied upon to obtain permanent injunction, must be direct and positive, and not merely that “ some of the statements are true,” and that others are made upon information and belief.</p> <p>■&' Plaintiff seeks to restrain the defendant from entering judgment upon an award made by referees mutually agreed upon. The reference • contained no stipulation that the award be made a rule of court, and no action was pending. The Judge, upon request, appointed the referees and directed them to make their report as soon as practicable. ! Meld: That neither under the Code, nor under the act of 1828, relating to arbitration, was the court authorized to render judgment upon the award without suit or without written agreement to that effect, and as the appellant, for aught that appears, has full opportunity for making his defence at law, the process of injunction will not be granted.</p>

<p>Where tlie return upon an appeal from a judgment rendered upon the •trial of an issue of law by the court does not disclose an exception ta'ken to the ruling of the court, either before or after, judgment, the case ■cannot be reviewed upon appeal, according to the Code of Procedure, and the appeal will be dismissed.</p>

<p>1. After the neglect or refusal of a person appointed to an office to-take the oath of office required by the Constitution for thirty days after personal notice of his appointment, such office is deemed vacant under the laws of this State.</p> <p>Ü. Section 7, Article Y. of the Constitution of this State, relates only to offices which are filled by election by the people.</p> <p>3. Where the Governor fills a vacancy in an office requiring the confirmation or advice and consent of the Senate, the person so appointed holds the office until the end of the next ensuing session of the Senate, unless an appointment be sooner made and confirmed by the Senate. The Executive cannot make such an appointment for a shorter time.</p>

<p>A law making appropriations for salaries of public officers and other current expenses of the State, cannot, under the Constitution, contain pro - visions upon any other subject; and a clause in such an act, prescribing the manner in which public dues may be paid, is void.</p>

<p>1. Art. IV, sec. 30, of the Constitution, provides that laws making appropriations for the salaries of public officers and other current expenses of the State, shall contain provisions on no other subject. The 14th sec. of the IVtli Article provides, that each law of the Legislature shall embrace but one subject and matters properly connected therewith, which subject shall be briefly expressed in the title.</p> <p>2. Where an act which, according to its title and its general provisions, is an act to raise a revenue and regulates the assessment and collection of taxes, a provision therein directing the payment of the interest on the public debt, and the current expenses of the State, is void.</p>

<p>1. The Governor may require the Justices of the Supreme Court to give their opiniou as to the iutepretation of any portion of the Constitution, or upon any point of law. The Governor when impeached is deemed under arrest, and is disqualified from performing the duties of ins office, and such duties devolve upon the Lieutenant-Governor until “ acquittal by the Senate.” The term acquittal signifies any affirmative final action by the Senate, other than a conviction, by which it dismisses or discontinues the prosecution.</p> <p>2. The Governor when impeached cannot require an opinion of this-Court upon such questions so long as such impeachment is pending. If, however; he makes such a demand, this Court must examine the question to the extent of determining whether there has been an acquittal, because, in the event there has been, they must deliver the opinion.</p> <p>3. Whether the action of the Senate in a case of impeachment is of such character as to entitle the defendant to a discharge,, is a question which the Senate can alone determine with effect. This Court does not administer the law of impeachments, aud even if it should deem the ' officer entitled to a discharge, it could not order a discharge, and the officer is suspended until the Senate discharges him from the impeachment. The Senate has the sole and exclusive jurisdiction to try all impeachments, and this Court cannot wrest a case from its jurisdiction and administer what it deems to be the law of that jurisdiction.</p> <p>4. When an officer lias been impeached by the Assembly, the adjournment of the Senate until the next regular session, and its failure to dispose of or act upon a motion to discharge the prisoner, is not an acquittal by the Senate within the meaning of the Constitution, although the term of office may expire with the meeting of the next regular session.</p>

<p>A pardon readies both, the punishment prescribed for the offence and the guilt of the offender. If full, it remits the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.</p>

<p>’k. A new county for judicial purposes only cannot be formed in any county already established.</p> <p>1E. The boundary lines of a county may be changed by a two-thirds vote of both houses of the Legislature.</p> <p>..'U. A new county, with all the rights and privileges of a county, cannot be created under the Constiution.</p>

<p>After trial and verdict, without exceptions taken, and a refusal of a new trial by the Court below, this Court will not interfere to disturb the verdict, if there is any .evidence, though slight, to support it, and there is no ground to conclude that the jury were influenced by other considerations than the evidence. The verdict in the present case seems to be fully supported by the evidence.</p> <p>The Court trying the cause should bo accorded a liberal discretion' in granting or refusing a new trial.</p>

This is a suit in chancery, instituted by Mrs. Bhoda E. Kilcrease, (now Gibbs,) against Samuel B. Stephens and Samtiél B. Love, surviving executors of the last will and testament of ¥m. E. Kilcrease and Albert Kilcrease, a child of William E. Kilcrease. While the suit was pending, and after answer filed; these executors being removed and E. S. Shepard being appointed administrator de bonis non with the' jwill annexed, he was made a party.

<p>W. died intestate May 1,1862. M. was appointed administrator and published notice as required by Act of Nov. 20,1828, concerning Wills,. &c., Sec. 89. Within two years after such publication, claims were-presented by creditors to an amount more than sufficient to absorb the entire estate, which had been converted into money, and a partial pro rata dividend made to those claims. The plaintiff, as heir, claimed the residue of decedent’s estate in the hands of the administrator undistributed, insisting that all creditors’ claims were barred by the statute of limitations, and January 18,1871, brought suit against the administrator to recover such residue. Held:</p> <p>1. That no statute of limitations was in force from Dec. 18, 1861, to the institution of suit.</p> <p>3. That in respect to this fund raised from the sale of intestate’s estate for the purpose of paying debts, the administrator holds the position of trustee for the creditors, whose claims are, or may be lawfully established, against whom the statute of limitations, if in force, does not run so as to deprive them of a. pro rata distribution of the fund.</p>

<p>A suit in equity cannot be maintained for tlie purpose of enjoining the levy and sale of personal property under an execution, and for the recovery of damages for the detention, on the ground that the property is exempt from such levy. Ample redress may be had at law.</p>

<p>1. Where tlie widow is entitled to dower in several tracts of land, site may be allotted dower in one tract equal in value to her interest hi the whole.</p> <p>3. Where such an allotment has been made for several years as to one tract, and other lands are subsequently discovered in which the widow has a right of dower, the first allotment will not be opened at tlie suit of the widow and against the consent of the executor, in order t© have a new allotment under which she is to acquire additioual interests in the first tract, as to which she has ceased to have any further right of dower.</p> <p>3. Under the act providing the method of an assignment of dower, the proceeding is special and summary, in which no relief other tharn that specially authorized can be granted. If it is desired to call into operation the general powers of a court of equity, the proceeding must be by bill.</p>

<p>Appeal from the First Judicial Circuit for Jackson county.</p> <p>The opinion of the Court contains a statement of the case.</p>

<p>Tlie period of two years from the rendition, of judgment is allowed fostaking an appeal. This period having elapsed without appeal, a party cannot regain his lost opportunity by an appeal from an unfavorable decision of a motion to set aside the judgment for irregularity.</p>

<p>Appeal from the Circuit Court, Fourth Judicial Circuit, Duval County.</p> <p>A statement of the case is contained in the opinion of the Court.-</p>

<p>1. In every contract for the sale of lands, whatever may be the language in which it is couched, there is an implied undertaking to make a good title, unless such an obligation is expressly excluded by the terms of the agreement.</p> <p>2. An offer to make a quit-claim deed, which conveys only vendor’s interest, is not a compliance with an agreement to make title in a case where the chain of -title upon the public records is defective and broken. ,</p> <p>3. Where the judgment oí the Court below is based upon the findings of a referee, an appeal brings these findings to this Court for review. They are to be treated here as the verdict of a jury, and unless they are against the evidence, this Court will not interfere. Where there are conflicts, the credibility of the witnesses will be loft to the referee.</p>

<p>Appeal from the Fourth Judicial Circuit for Duval county. "</p> <p>A statement of the case is contained in the opinion of the court.</p>

<p>Appeal from the Circuit Court, First Judicial Circuit, Walton County.</p> <p>A statement of the case is contained in the opinion of the court.</p>

Thomas O. Allen and Wm. E. •Farrar were partners by the name of Allen & Farrar, engaged'in the business of sawing lumber for market at their- mill near Jacksonville. In 1871 and 1872, they made drafts upon themselves, payable at Boston, for over twenty. thousand dollars, which drafts were cashed by.the National Freedman’s Savings and.Trust Co., at its branch office in Jacksonville, in the usual course of banking and exchange business.

<p>1. While a suit in replevin is pending, in which the property in controversy has been delivered to the plaintiff by the sheriff, in pursuance of the statute, an action by the defendant against the plaintiff in the replevin suit cannot be maintained to recover the value of the property. During the pendency of the replevin suit, the property is actually or constructively in the custody of the law; the remedy must be had by action against the plaintiff in replevin, or upon the bond, after judgment in favor of defendant upon a trial or dismissal of the suit.</p> <p>3. While such replevin suit is pending, the plaintiff, or his representatives, filed a bill in chancery against the defendant, and another for the purpose of annulling the contract of sale, under which the defendant in the replevin suit became possessed of the property, and to stay proceedings in the replevin suit. This suit in chancery re mained at issue for several years, neither party bringing it to triaj or hearing, and meantime the plaintiff and complainants died. ITetó That these circumstances afforded no ground for a suit in equity by defendant in the replevin suit against the present administrator of the plaintiff solely to recover the value of the property, the two first mentioned suits being undisposed of.</p>

<p>Appeal from the Circuit Court of the Second Judicial Circuit for Jefferson county.</p> <p>A statement of the case is contained in the opinion of the court.</p>

<p>Judgment was recovered in 1868 against A., before the adoption of the- . present Constitution and exemption laws, and after this Constitution took effect an execution was issued upon the judgment and persona®, property levied upon of the value of $680, which was claimed by. A. as exempt and released from levy. Afterwards the same property v was again levied upon and A. died. The widow and heirs now ciato the exemption. Held, ■ .</p> <p>1. That the exemption cannot be allowed under the Constitution of 1868: to a greater amount than was allowed by the law of 1866 in force.* ' - • when the judgment was obtained.</p> <p>S.XThat although the right of the heirs to claim an exemption after the- - death of the debtor was not expressly recognized by the law of 1866».' yet it may be allowed under the Constitution of 1868, no right to» subject the property so exempted having existed prior to the adoptions 1 of the Constitution of 1868, and therefore no right of the creditor being-impaired by extending tho exemption to the heirs.</p>

<p>1. The report of the findings of facts by a referee, being in the nature of a special verdict, this court will not disturb such findings when they are supported by evidence, the referee being the judge of the weight of the evidence and the credibility of the witnesses.</p> <p>2. The referee is the judge of the sufficiency of the impeachment of a witness and the extent to which his credibility may have been impaired, in like manner as he is the judge of the other facts.</p> <p>8. Negligence is a question of fact, also, for the referee to determine upon all the evidence in the cause relating thereto.</p>

<p>1. A bond executed by the plaintiff and two sureties upon the issuing of a writ of attachment, in double the amount of the debt or sum demanded, is “ good and sufficient ” if approved by the clerk issuing the same though each of the sureties is not good for more than one half the pen! alty of the bond, if both together are worth double the amount of the debt sued for.</p> <p>2. Where the charge of a judge to a jury embraces several propositions of law, or of law and fact, a general exception to the whole charge as erroneous is not a proper exception unless the whole scope of the charge is bad.. A separate exception to each item of the charge objected to is contemplated by the rules.</p> <p>3. Even though it be shown that there has been a mistake in the directions of the court to the jury, or the charge not as specific as might be thought proper, yet if it be upon a point on -which justice has been done, or the mistake or omission could not have produced a.different verdict, a new'trial will not.be granted.</p> <p>4. Giving a note for an antecedent debt is not a payment of it, unless the note be received under an express agreement, or under circumstances from which an agreement may be fairly implied to treat it as a payment, or unless payment in fact result from it. ^</p> <p>5. An agreement by a debtor and.creditor that the creditor will, at a future day, accept new notes and securities in lieu of those held, giving, ad- • ditional time of payment of the indebtedness, cannot be enforced unless some valid consideration be received by, or benefit or advantage has-accrued thereby, to the'creditor. ' ' ■</p>

Richard Dukes was indicted and convicted of murder in the first degree at the fall term, 1873, of the Circuit Court of Jackson county. The following charge was given to the jury : By the statues of Florida there are three degree of murder. The first is defined by the statute to be when the killing is perpetrated from a premeditated design to effect the death of the person killed, or any human being.

This is an appeal from the judgment of the Circuit Court for Duval county. Cale, plaintiff, sued Brock, defendant, to recover the value of a valise and its contents as the baggage of plaintiff, who was a tz’aveling dentist who took passage on defendant’s steamer Darlington, on the St. John’s river, the valise having been lost on or before the az*rival of the boat at its wharf in Jacksonville.

<p>I. In the absence of special equities, the County and Circuit Courts have concurrent jurisdiction in the matter of the settlement of administra! tions. Where there has been a suggestion of insolvency under the, statute in the County Court, and creditors have filed their claims, the Circuit Court should not take jurisdiction at the suit of such creditors, in the absence of circumstances calling for the exercise of its chancery powers, as distinct from probate or surrogate powers, or unless for some special reason it is made to appear that the County Court cannot administer adequate and complete relief between the parties. The constitutional grant of surrogate and probate jurisdiction to the County Court considered and defined.</p> <p>2. Where the jurisdiction of a Court of Equity attaches to such matter' ■ for one purpose, it may retain the case for all purposes and make final settlement of the estate.</p>

This is a suit brought in May, 1873, by Emeline Coy, administratrix of the estate of Amaziah Coy, deceased, for the foreclosure of a mortgage.

Hicks, complainant, commencedkis suit in 1869, in equity,, against Jolin W. Price, administrator, and Elizabeth Oí.

The bill iu this case was filed for the purpose of enjoining the collector of revenue of JDnval county from selling tbe complainants’ lands for an unpaid- tax levied under the provisions of the acts of 1871 and 1873, upon tlxe grounds that the tax is not warranted by law on account of the unconstitutionality of those acts.