Volume 15 — Florida Reports

This is an appeal from a judgment of the Circuit Court of the First Judicial Circuit of Escambia county, in which a demurrer to a complain t was overruled. The complaint alleged that Charles. Winters died on the first of October, A. D. 1858, leaving considerable estate and three children — Emelia J., who was then three years old, Erie, who was two, and Bichard 0., who was eight months. That he left no widow.

Writ of error from Fifth Circuit — Marion county. The grounds of appeal are set forth in the following assignment of errors: 1. The court erred in refusing to quash the indictment. 2.

<p>The certificate of the sale of lands by the United States Direct Tax Commissioners funder the act of Congress of June 7, 1862,) for the nonpayment of taxes, is prima fade evidence of the regularity and validity of the sale and of the title of the purchaser, and a mere assignment by, the purchaser of the certificate of sale does not divest him of the 'title thus acquired, and the assignee of the certificate cannot maintain ejectment in his own name. The title being vested in the purchaser by the tax'sale, he can only divest himself of it, under the Jaws of this State, by deed or by will, (if the property is not redeemed 'by the owner as prescribed by law,) or, the assignee of the certificate - ’may, by complying with the terms of the second section of the act of ■Congress of March 8, I860, (18 Statutes at Large, 501,) obtain a patent .from the President of the United States.</p>

<p>When a defendant has appeared and pleaded to' the declaration, he cannot, on appeal, take advantage of any irregularity in the service, or of the entire omission to make service of the process by which the suit is commenced.</p>

This action was instituted in Abe Circuit Court of the Fourth Judicial Circuit for the county of Duval by Samuel A. Winter, one of the devisees under the will of his father, James Winter, who died in February, A. D. 1857. The will directed a division of the land in kind among the children, share and share alike, in case a fair and equal division in kind could be made.

The appellant was the widow of Cornelius Rain, and as such applied to the Circuit Court by bill in equity for an assignment of dower in certain lands described. Appellee then commenced this suit by bill to restrain her from seeking dower in the lands, because he had bargained with said Cornelius Rain for his interest in the lands and held his bond for title thereto, to be consummated on payment to Rain of the sum ’of $2,200, on or before the first day of January, 1867.

<p>A certificate of sale of lands sold by tlie United States Direct Tax Commissioners, tinder the act of Congress of June 7, 1862, for unpaid taxes charged thereon, signed by two of the tax commissioners, is admissible in evidence in an action brought to try the title to the land.</p>

<p>A relinquishment of dower by a wife for the benefit of her husband is a sufficient consideration for a subsequent settlement upon her by him; and such settlement is not fraudulent as to credit ora of the husband if the relinquishment was obtained upon an express agreement with her that the settlement should be made, and the properly settled upon her is a fair equivalent for the dower released.</p>

<p>1. It is not a valid objection to the competency of a witness produced on the part of the defendant that he had been the attorney of the plaintiff, and he may testify as to any facts except such as came to his knowledge by means of his confidential relations with his client.</p> <p>2. Where a mortgage was given to secure a promissory note, payable in four months, and no suit brought until fully nineteen years after the note became due, and no proof that any portion of the principal or interest had ever been demanded, and the mortgagor having died, the note and mortgage not being found among his effects, and the administratrix, the widow of the mortgagee, never having had any knowledge of their existence, and there being no proof tending to show what had become of the note and mortgage, the administratrix not bringing suit until after this long time had elapsed on being informed that the mortgage was not cancelled of record; upon answer of payment, held: that payment would be presumed on account of the ’ lapse of time and other circumstances shown.</p> <p>S. Upon foreclosure of a mortgage upon an undivided interest in lands, the court cannot make a decree of partition of the lands among the several owners and claimants.</p>

This is an appeal from a judgment rendered by the Circuit Court for Duval county. The court, in .the determination of this case, decided nothing as to the merits of the controversy. Tbe points' decided are mostly matters of practice, and sufficient of the record is given in the opinion of the court to show the manner in which the questions arose.

• Appeal from judgment of Circuit Court for Nassau county. The appellant sued the respondent in ejectment to recover a lot of land in Fernandina. The defendant answered, denying the allegations in the complaint, and, for a further defence, alleged that he had had the peaceable possession of the premises, under title adverse to the plaintiff, for seven years preceding the commencement of this suit.

<p>1. The erection of a building in the centre of a street sixty feet wide, to be used for a market for meat, fish, &c., and as a pound for confining swine and other animals and as a jail, in frout of pjaces of business or private residence, would be both a public and private nuisance, and the courts of equity will interfere to prevent or abate it in behalf of any one likely to sustain an injury thereby.</p> <p>2. The corporate authorities of a town have no right to appropriate the public streets to any other uses than that of travel, or right of wajr, to which they were dedicated, and the convenience of the -whole pub-lie, and they cannot lawfully obstruct the streets with public or private buildings; and any person whose property is especially injured thereby, may have the aid of the courts of equity to restrain such improper appropriation.</p>

<p>An original bill, filed for the purpose of enjoining the execution of a de- • cree of foreclosure of -a mortgage' upon .the ground that a defence existed of which the defendant neglected to avail himself, or which may have been denied by the court,’cannot be sustained.</p>

This cause came before the Supreme Court by petition for a writ of mamdamus to compel Judge YanNess, of the First Judicial Circuit, to try certain causes.

<p>1.. In a proceeding under the act relating to forcible entry and unlawful detainer, the plaintiff claimed that he was lawfully put in possession of the premises by virtue of a writ of possession issued in a former similar proceeding against the husband of one of the appellants; and on the trial, the writ of possession and the proceedings in the former case being produced, and it appearing that no judgment had been entered therein; it is Held, that the writ of possession was void, and did not give the plaintiff a lawful possession, or right of possession; and the defendant, having re-entered without force or violence, was not guilty of an unlawful entry.</p> <p>SK Copies of detached papers, severally certified to be copies of papers filed, and of minutes of the court, purporting to pertain to a cause, are not proper evidence of the proceedings and judgment when offered for the purpose of showing a judgment. The process, pleadings, proceedings, entry of verdict and final judgment, forming the complete judgment record, or a copy thereof certified to bo such record, and the whole thereof, should be produced.</p> <p>S'. This entry in the minutes, “Verdict for plaintiff; let writ issue,” is not a judgment, and execution thereon is void.</p> <p>4. The Circuit Court, under the Constitution, has jurisdiction of all actions relating to the possession and the right of possession of real estate, to be exercised in such fonn as the Legislature may prescribe.</p> <p>5. A form of oath administered to a jury in a civil action containing matter not embraced in the issue, which was not objected to by either of the parties', will not be considered as error, unless it is evident tjiat the jury were misled thereb}^.</p>

This is an appeal from the Circuit Court, of Orange county, Seventh Judicial Circuit. A statement of the case appears in the opinion of the court.

In April, 1873, William N. Taylor, one of the appellees, executed to Andrew E. Patterson, appellant, a mortgage upon certain chattel property, to-wit: “ one bay mule, one bay horse, and all of the corn and cotton that I may make the present year.” The consideration was that Patterson had already loaned and advanced to him three hundred dollars, and. the agreement by Patterson “ to make further loans and advances to me in merchandise to the amount of twelve hundred dollars…

<p>1. The twenty-third section of the act to provide for the incorporation of ■ cities, and towns, etc., approved,February 4,1869, which granted to the city or town council the power to levy'and collect taxes upon property, real and personal, for the use and good government of the city or town, and for carrying out the purposes of its organization, was not repealed by section seventy-nine of an act for the assessment and collection of revenue, approved June 24,1869.</p> <p>.2. The meaning and intention of the Legislature, in the enactment and repeal of laws, may often be found in the cotemporaneous and subsequent action of that body in reference to the subject-matter,' and the evident intention of the Legislature will control the construction of its acts.</p>

<p>1. In an action brought by H. against M. B. as administrator of the estate of O. B., to foreclose a mortgage on real estate given by C. B. in his life-time, the defendant in his answer alleging that C. B. held the land in trust for certain other persons, it appearing in the record that H. was a dona fide purchaser by mortgage for a valuable consideration without'notice of such trust, eight years having elapsed between the acquisition of the title by C. B. and the commencement of the action for foreclosure: Held, that it was not necessary to make the alleged beneficiaries parties defendants in the action.</p> <p>2. Prior'incumbrancers as mortgagees are not necessary parties in an action to foreclose a subsequent mortgage.</p>

<p>Under the act of Congress of March 2,1867, entitled “ An act for the more efficient government of the rebel States,” and the act of July 19,1867, amendatory thereof, the officer commanding the military district in which Florida was embraced was authorized to suspend a sheriff in the exercise of his power to sell property under execution.</p>

<p>1. Equity will not enjoin the collection of taxes by a municipal corporation from the property of its creditor until the debt due by the corporation to such creditor is paid. A. tax is not the subject matter of set off.</p> <p>% Equity will not enjoin the sale of property for taxes on account of irregularities in the matter of notice of time and place of sale.</p> <p>3. A court of equity will not devise some method to recover a debt because of failure to recover the debt through the ordinary legal remedies.</p>

The Trustees of the Internal Improvement Fund, on the 4th of February, A. D. 1869, contracted with W. H.- Gleason to ditch and drain certain swamp and overflowed lands in the State of Florida, agreeing that whenever he should open or dig ditches or drains containing fifty thousand feet, cubic measure, and should make to the board a certificate of the tact, under oath, attested by the county surveyor or a magistrate, duly qualified, of the county where such ditches or drains…

This is an action under the Code brought by Lewis Kahn against Moses Kahn and Joseph Doll.

The bill in this case was filed in February, 1875, by IT. H. Hoeg. It alleges substantially that the complainant, with John S. Saminis, Otis L..

<p>1. It is within the power of the Legislature to authorize notice of the institution of a suit to he given by an attorney or party, instead of through a writ issuing out of a court.</p> <p>2. The summons authorized by the Code is not process within the meaning of that clause of the Constitution which requires that “ the style of all process shall be ‘ the State of Florida.’ ”</p>

<p>1. Crops grown upon the common estate by one tenant in common oí the land, vest in and become the .property of the occupying tenant. The other co-tenants have no property in such crops. In cases of exclusion, where there is a liability of the occupying tenant, it extends only to an accounting for what he has received beyond his first share. There is no property or lien in the produce.</p> <p>2. As between tenants in common it is within the power of the chancellor in decreeing partition to direct the commissioners to assign the share containing the homestead to the surviving son, before that time occupying the homestead, rather than to surviving grandchildren. In such case, where the surviving son can retain the property, this action of the chancellor will not be disturbed. If, however, it is established that the assignment of the homestead will result in its going to his creditors, the homestead should be given to the grandchildren, as they should be preferred to creditors of the son.</p>

The opinion of the court contains a statement of the ease. Other points involved in this case are decided in the case reported just before this, where the co-tenants, upon their own bill, sought relief against the mortgagee of the oceu* pying tenant and the occupying tenant.

,1 Appeal from Duval Circuit Court, Fourth Judicial Circuit, . . ■- , The points in this case are fully explained in the briefs of counsel and the opinion of the court, ■ , ;

<p>Where an appeal and supersedeas have been effected, the jurisdiction of the appellate court attaches, and that jurisdiction is then exclusive. The respondent here cannot, during the pendency of an appeal, dismiss his case in the Circuit Court, and, by this means, dismiss here the appeal of the appellant.</p>

<p>Appeal from the Circuit Court for Jefferson county, Second Judicial District.</p> <p>The opinion of the court contains a statement of the case.</p>

This is an appeal from an interlocutory order granting a rehearing after final decree upon petition praying leave to bring forward additional evidence and for a hearing thereon. The order for such rehearing was granted by the Judge of the Third Judicial Circuit. The decision of the Supreme Court is confined strictly to a question of practice, without any reference to the particular facts in the case.

<p>1. .The statutes of this State provide that the mortgagor shall be entitled to the possession of the mortgaged property until after decree of foreclosure and sale; that the mortgage is a “ specific lien ’’upon property, and that the mortgagee is incapable of acquiring possession until after decree' of foreclosure, and then only by bidding and outbidding all . competitors in market. An execution purchaser of the equity ofre- . demption takes the land subject, to the equitable rights of the mortgagee against the mortgagor. The possession which the law allows 'the mortgagor, as well as such purchaser, is subordinate to the equi- • table rights Of the mortgagee. The right to possession exists cum onere. hfon-residencefand insolvency of the mortgagor, a failure' on the part of-the execution purchaser-in possession as well as of the mortgagor.to keep doivn the interest of the mortgage debt, and clear inadequacy of the mortgaged premises to pay the debt, are equities by which the -court can affect the conscience of the party thus in possession. The-mortgage is in equity a charge upon: the lands and its producé; and under these circumstances, a receiver of .the rents and profits should be appointed upon bill seeking foreclosure and sale..</p> <p>% Where the bill fails to set forth these equities, and neglects to pray for a receiver or for any sequestration of the rents and profits, it is not. ' conformable to chancery practice to appoint a receiver upon petition ’ without amendment of the bill. A petition in-such case cannot be at- • tended to in the matter of appointing a receiver as setting up substantial equities not otherwise alleged or claimed in the pleadings. The-plaintiffs must amend their bill to make these equities available. '</p>

• ’ Motion to dismiss the' appeal. ' ' ■' 1 .1 ' 1 ' . : O. P. Cooper, for Appellee, ' submitted ' the' following points' on the motion to dismiss: 1. That the right of appeal is barred* by the lapse of time. , :,, , , ,. . , ,., , , , 2. There is no bill of exceptions filed . in this .case, as required by law and .the rules and practice of this court. 3. There is no lawful bond or.undertaking ¡filed, apparent upon the record. ... _ , , , ■, • „ , • ; 4.

<p>Where there is no-final judgment in a common law case, the appeal must he dismissed. 1</p>

Writ of error from the Circuit Court of Madison county. Attorney-General Cocke moved to dismiss the writ of error. The grounds of the motion appear in the opinion of the court.

<p>1. The act of 1870, entitled “ An act concerning testimony,” gives to the accused in all criminal prosecutions the right to make a statement, under oath, before the jury, of the matter of his or her defense, and does not make the accused a witness in the case, or subject him to the rules governing in the examination of witnesses.</p> <p>3. Such statement, when so made, is for the jury alone, and to be taken by them into consideration in connection with all the evidence of the case, and to be allowed such weight, and such only, as they, in their judgment, may see fit to give to it. •</p> <p>3. It is not sufficient, in a case of perjury, for the court to charge the jury “ that if they believed, from the testimony, that the accused took the oath, and that it was false, he was guilty.” The court should charge that they must find that the accused took a wilfully false oath, and that it must be so taken in relation to matter material (o the issue, in order to make him subject to the punishment provided for perjury.</p>

<p>■This action was .'in -assumpsit -upon certain-orders, notes, and1 "other ’ Evidences of- indebtedness i of -thee said ; Charles Brówárd^ in-his’ life-time,’given *fo-: the'plaintiffs,; and-'-to the persons from whom'the said-plaintiffs acquired ■ tltlei ,; It was brought' in the ' month of June, 1875,; against Montgomery Lt .BroWafdy the-’administrator -óf’thé- "éstate-'of "the isaid, Charles Broward, déedased: The appearance-of--the.defendant was entered, and at the rule day in August-his: plea was filed' astbllows-: - ' The ’defendant* by'A.'£)oggett^'his.'a'ttor-. ney, sáyü that the said 'estate whereof-he is .administrator ' is■ insolveffip and that -as- administrator lie- has-filed-a-written ,suggestion of imeh'insolvency-', iff. the office.*of. the Jndge.'of the' -County Coiirtp'fdr the county -,of Rttv-al, ipursuantto the statute of the - State* of TTorida’in' s.uch casé made and pro-, vldedv” -■: m "m-; c* m , tro .-.Ak r- ro. m m ro¡ro romroró</p> <p>,:To':thiS'5ple’a:' the plaintiffs,- bytheir .‘:attorney¡,:íI: -'Bisbeé; Jr.p-filed; a general demurrer!' C«!'. . ro, /</p> <p>On the hearing of the, case*off-lSth'- November,' 1875,-''the coiirt ’overruled the demurrer, dismissed ‘the 'cause, ■ and gave judgment for defendant. Frofñs't'Ms--- judgment- plaintiffs appeal,' ' r- ■ -</p>

<p>1. The accused being-indicted as accessory to the murder of Ellen Wells by William-Newton, pleaded in abatement that the certificate of the ' , Chairman of the Board of County Commissioners had not been recorded together with the" list of persons selected by the board as re ...quire’d by law, from which juries'are'required-‘to be drawn. Held that the omission of the Clerk to record the certificate did not consti- „ tute, an, irregularity in .tlm drawing, summoning-,or empaneling, of jurors. Í</p> <p>2. Since the date of “ ah act to amend section 5, chapter 1628, Laws o . "Florida; reducing the number of grand And petit'jufors,” approved '• February 20,1875, not more than fifteen persons should be summoned and sworn on a grand jury.. The purpose of the act was' to reduce the number of grand jurors, and its effect was to repeal so much of the existing law as requiréd a greater number to be sworn. •</p> <p>3. A second or subsequent count in an indictment should contain a statement of all the necessary facts and allegations tp charge the offense. A reference to a former count for the purpose of supplying a material statement is'riot sufficient.,.' ’ '," ..</p> <p>The twenty-first section of the act of 1868, relating to jurors," provides “ tliat when a sufficient' number of jurors' duly "drawn" and summoned cannot be obtained,, the court shall cause jurors to be summoned . “from Uie bystanders, or from the county at large.” The co.urt ordered a deficiency to be supplied “from the bystanders or fr.om the county at-large,” thus milking the order in the alternative form: 'Held ', that the-mode of supplying'the deficiency in either or both'wáys ís left' to the ,, digcretion of the, court; and; there was, np irregularitj'which. could i work an injury,to.the.accused. . ., , t,</p> <p>5. After the-jury had been sworn, but before any testimony had been taken, one of the number was found to be an alien who had not taken any stejf-toward naturalization; and w'as one of a class prohibited 'by the constitution from being a juror. The court discharged him and had his place supplied with -a competent person. Held, not irregular In such case the entire jury should be sworn anew.</p> <p>6. A principal offender is, before judgment of conviction of felony, a competent witness against an accomplice or accessory in the same crime.</p> <p>7. In “capital” cases, if a majority of the jury recommend the accused to the mercy of the court, the sentence must be imprisonment for life (Act of February 27,1872, Ch. 1877.) ‘ It is held not to be error if the" copi'^omit -t,p infonp, the jury of.fhiá law, unless specially requested to. do so. 1 ■ ,v.v-.</p> <p>8. One charged as an accessory before the fact,'in an indictment felony1! '' 'tíáhdot, by lkwVbe tried before the principal offender is dried, but both maybe-tried upon' one indictment. : . ■'</p> <p>9. Ih:: ¡un indictmgntj'pi' murder, the part of . the, bQ<Jy,;tipon y'hich.t-lie dm, , jury was inflicted should be stated! -The diniensipnspf.an incised,,; wound should also be given. ,, .</p> <p>10. fn 'capital ‘caáes, before'pronouncing' sentence, the Judge should'ask . the prisoner whether he has anything to say why'thesentehce of the (¡(liiwis'hbuldBphbe pronounced against him, and this, should appear on record.-, But thepmissipn of this ceremony.is,n.ot groundJor ,a new/, trial, but only for setting .aside the júdgmerit'ór sentence already pronounced,' to tlíé-encúthíit it' maj/'be jh'óperly óbséfved'ánd judgment" -■regularly;prOnOuñcedJ ., i ,:;/,;/ /.; ,v. ■ -</p>

<p>1. The accused was indicted for murder, and another person as an accessory ;. the accessory being tried first, the principal was used by the State as a witness against the accessory, who was convicted. On being arraigned for trial the principal pleaded that he was entitled to be discharged, on the ground that he had. been used as a witness against, and secured the conviction of, the accessory. Held, that the plea was bad; such matters should be addressed to the Executive power of pardon, and not the courts.</p> <p>3. It is alleged that according to the evidence the name of the person killed was Ellen Keeck, and not Ellen IVells, as charged in the indictment, and that judgment should be arrested for that cause. Held, that though there was some confusion in the evidence as to the true name, yet it was for the jury to determine as to the identity of the person named in the indictment and the proofs. It is generally sufficient to give the name by which the person is usually known.</p>

<p>1. Under the Act of Congress of June 7,1862, providing for the collection of direct taxes in insurrectionary districts, which provides that unless the taxes therein mentioned shall be paid within sixty da3Ts from the time of levying the same, the title to the property taxed shall “’become forfeited” to the United States, there was no effectual forfeiture until a sale had been made pursuant to the act. The act was designed to be a measure of revenue.</p> <p>2. The sixth section of Article XT of the Constitution of this State reads as follows: “ All proceedings, decisions or actions accomplished by civil or military officers, acting under authority of the United States, subsequent to the 10th day of January, A. D. 1861, and prior to the final restoration of the State to the Government of the United States, are hereby declared valid, and shall not be subject to adjudication in the courts cf this State.” If this is construed as an act of legislation whereby the property of one is transferred to another without due process of law, it is void by the Constitution of the United States; construed as a judicial act, it is void for the want of power iu the convention or the people to determine the rights of parties, unheard and without notice. The evident purpose of the convention in adopting this section was to prevent the courts of this State from entertaining suits brought to set aside, reverse or annul any act or decision of officers of the United States, acting within the scope of their authority, but it does not control the power of the courts to determine the legal effect of such acts and decisions as evidence affecting the rights of parties, according to the ordinary rules of law.</p> <p>8. The seventh section of the Act of Congress of June 7th, 1862, providing for the collection of direct taxes in insurrectionary districts, declares that the certificate of sale for taxes “ shall be received in all courts and places as prima facie evidence of the regularity and validity of the sale and of the title of the purchaser under the same; and further, “that the certificate of the Commissioners shall only be affected as evidence of the regularity and validity of sale by establishing the fact that said property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of this act.” Held, that the act should be so construed that the ownerof lands sold for said taxes may show, for the purpose of defeating the certificate of sale, that no tax had been legally assessed, or that any other step necessary to be taken by the Commissioners had not been taken, and, thus, that they were without power to make the sale; and that all their essential proceedings which were not conformable to law were of no legal force to affect the title to the property.</p> <p>4. A tax levied by the Direct Tax Commissioners of the United States, in 1863, in Nassau county, while a small portion only of the county had been subject to the military authority of the United States; was not authorized by the Act of Congress. The Tax Commissioners were not empowered to enter upon the discharge of their duties until the ' commanding General of the forces of the United States had established the military authority of the United States throughout the county.</p>

<p>1. The deed of trust executed by the Florida Railroad Company to Soutter and McRae, as Trustees, conveying certain lands and lots, in trust, to sell and convey the same by deeds of conveyance, and to devote the proceeds to the payment of liabilities of the company, is not a mortgage, but vests the legal title in the trustees, and they are the proper parties to protect the title of such lands as remain unconveyed by them.</p> <p>3. The eighth section of the Act of Congress of June 7,1863, for the collection of direct taxes in insurrectionary districts, provided that the owner might, at any time within one year after a sale of lands, prove to the satisfaction of the Commissioners that they belonged to a certain class of persons, and that they had been unable, by reason of the insurrection, to pay the taxes or redeem the lands from sale within the time limited for paying or redeeming the same, in which case the Commissioners were authorized to allow a further time to redeem the same, not exceeding two years from the time of sale; and any party interested may appeal from the decision of the Commissioners to the District Court of the United States. The plaintiffs, whose lands had been sold for taxes, applied to the Commissioners and made certain proofs, whereupon the Commissioners made an order that satisfactory proofs required by statute having been made, the plaintiffs were entitled to redeem within two years from the day of sale of their lands; and (he plaintiffs within|the two years redeemed the lands from sale— all which appeared by the records of the Board of Tax Commissionsioners; and no appeal was .taken from their decision to the Distiict Court. The defendant now claiming that the plaintiffs were not entitled to redeem the lands sold, it is held, that the Board of Tax Commissioners were made by law the judges of the sufficiency of the application and the proofs, and their order standing unreversed, it is conclusive, the courts of the State having no power to review that judgment. The redemption by the plaintiffs extinguished the certificate of sale.</p>

<p>The granting of a writ of error to'a judgment in a habeas corpus proceeding, is a matter, of discretion, in this cburt. The proceeding is ex parte, not requiring notice unless so directed by tlie court. A, petition setting forth the nature of the case, accompanied' by a certified copy of the - record, is the proper basis for such motion.</p>

<p>When a person is indicted for murder or other capital offense, he is entitled, upon habeas corpus, to produce such evidence as ■may'' operate to convince the court that the offense is of such grade, or that there are such strong doubts in the case that a jury should not, upon the case as presented, convjct of a capital offense for the purpose of being discharged on bail,</p>

<p>Writ of error to the Circuit Court of Orange cóiinty.</p>

<p>1. The charter of a railroad company providing H that the said railroad and its appurtenances, and' all property therewith connected, shall not be taxed higher than one half of one per cent, upon its annual net income,” is a contract between the State and’the company, the' obligation of which cannot be impaired by subsequent action of the .State. . :</p> <p>2. Upon the amendment of- a charier of a railroad company ■ (whose ■road, was thus. exempt from taxation) authorizing it, to construct a branch road, the branch road, when constructed, became subject to the provisions of the original charter, and the right of exemption from taxation therein granted attached with full force to the'branch road. o i ;. ., " ... ’-.'i</p> <p>3. A statute providing that “ all rights'” as to a line Of. railway which “ are aqd have been legally vested ” in one corporation shall pass to. . another corporation upon a sale by one to the other, is sufficiently clear and certain to pass a right of exemption from taxation, if such right exists in the vendor company at the time of sale.</p> <p>4. The railroads exempted from taxation under the 18th section of the act entitled “ an act to provide for and encourage a liberal system of internal improvements in this State,” approved January 6,1855, were such roads only as were a part of the State system thereby created, and the railroad from Lire Oak, Florida, to Lawton, Georgia, was not embraced therein.' This section of that act construed.</p> <p>5. The duration.of a franchise or right granted by the Legislature to a •, corporation is fixed by the constitution operative at the time of the enactment, or by tbe enactment, itself.- The rights passing to the Atlantic & Gulf Railroad Company under the act of 1866,' are coexistent ■ ' with the franchise'to be a corporation therein granted. ■ • • •</p>

<p>Appeal from the Circuit Court of Alachua county.</p>

<p>Appeal from the Circuit Court of Gadsden county.</p>

On the 13th day of May, 1875, Hester B. Seegar, administratrix of, &c., of John F. Seegar, deceased, filed her bill of complaint against J. E. A. Davidson, Judge of the County Court in and for Gadsden county, and R. S. Tucker, Sheriff of said county of Gadsden.

<p>1.. 'When a bill of complaint contains such a variety of subjects of litiga; . tion not proper to be joined, and of parties not properly joined, and as to some of the matters other parties are necessary, the court may,.sM® sponte, dismiss the bill as multifarious, whether the bill be or be not demurred'to for such causes. '</p> <p>2.'A bill in equity to set aside a, deed or mortgage cannot be sustained without the presence of the grantee or mortgagee; .and with such ■matters cannot be joined a demand ¡for, rents and profits. . -</p> <p>8; A demand for rents and profits, or; fori .use; and .occupation, cannot be recovered in a suit in equity for a partition.,......</p> <p>4. A decree of: partition canndt be had while the premises are held adversely by other parties. The le&al:titlémust be first established.</p> <p>Equity is not the proper forum nor a'bili in partition' the proper-action 'for trying the legal title to lands.- ' ’ •</p>

<p>The County Superintendent of.Schools has no authority to purchase and pay for lands for school purposes without being authorized by the County Board of Instruction, and money paid by the Treasurer upon the order of the Superintendent for land purchased without such authority may. be recovered by the County Board as a corporation, in an action for money had and received.</p>

<p>A party.indicted for murder. is, entitled, .uponproper.application,:to-a writ of habeas corpus for the, purpose of showing, such facts as may satisfy the court that the proof is not strong or the presumption is not great that he is guilty of a capital offence, and that lie is entitled to be discharged on bail. The indictment charging a capital offence is not conclusive upon such application, under the statute, as to the character of the testimony.</p>

Justices Eandall and YanYalkenbufgh being disqualified, Judges JBryson and Goss, of the' Third and Fifth Circuits, with Mr. Justice Westeott, heard the case. The term of Judge Goss having expired, the court was composed of Mr. Justice Westcott and Judge Bryson when the opinion was delivered. The opinion of the court contains a statement of the case.

October 5, 1875. To the Honorable Justices of the Supreme Court: Gentlemen : Section 15 of Article VI of the Constitution of this State originally read as follows, viz : “ The Governor shall appoint as many Justices of the Peace as he may deem necessary.

Executive Oeeice, Tallahassee, Fla., November 8,1875. j To the Honorable Justices of the Supreme Court : Gentlemen : Section 2 of Article IY of the Constitution of this State originally read as follows : “ Section 2. The session of the Legislature shall be annual, the first session on the second Monday of June, A. D. 1868, and thereafter on the first Tuesday after the first Monday of January, commencing in the year A. D. 1869.