Volume 18 — Florida Reports

<p>1. A debtor who is a member of a partnership engaged in mercantile business is not entitled to select from the partnership goods levied on by virtue of an execution against him, and to have exempted to him any portion of the partnership goods under the exemption laws of this State. «</p> <p>2. A writ of mandamus will not lie to compel a sheriff to cause an appraisement of personal property levied on, to enable the debtor in execution to select such as he desires to claim as exempt, after the property has been sold and delivered by the sheriff.</p> <p>3. An alternative writ of mandamus requiring a sheriff to cause an appraisement to be made of goods levied on, so that the debtor may select such as may be claimed to be exempt from levy and sale, should show that the debtor is a person entitled to claim the exemption.</p>

<p>Writ of Error to the Circuit Court of Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Writ of Error to the Circuit Court for Duval county.</p> <p>The facts of the case are stated -in the opinion.</p>

<p>Appeal from the Circuit Court-for Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. A bill of exceptions containing the evidence as given is the proper method by which the testimony upon a trial is brought to this court. Affidavits of persons present at the trial and of jurors in the case as to what a witness stated, although embraced in a bill ■ of exceptions, cannot be here considered.</p> <p>2. Where the “property in question” in an action of ejectment, as shown by the declaration, is a named lot in a city, a verdict that “ we the jury find the defendant guilty of improperly withholding the property in question and find for plaintiff damages to amount of four hundred and thirty dollars,” is sufficiently certain.</p>

This is an action of assumpsit. The entire claim of the appellee sued for was a balance of $274.55, due on an account of $339.55.

Writ of Error to the Circuit Court for Orange county. Chapter 2096 of the Laws of Florida (McClellan’s Digest, page 338) provides that “ if either of the parties, or their attorneys, present to the Judge their instructions in writing on the point or points of law or exceptions taken arising on the trial, it shall be the duty of the Judge to declare, in writing, to the jury his ruling thereupon as presented, and pronounce the same to the juiy as given or refused.” Rule 75,…

<p>1. What is done under a decree is valid so far as third persons are concerned, notwithstanding the subsequent reversal of the decree. Where moneys collected under such decrees ai’e applied by order of court to a debt of plaintiff to a third person, there is no remedy against such third, person upon a subsequent reversal of the decree.</p> <p>2. Where a receiver has moneys sequestered by him under a decree finding such moneys applicable to plaintiff’s demand, and a portion of such moneys is applied by order of court to the payment of the claim of plaintiff’s attorney against the plaintiff for his services in the suit, a subsequent reversal of the decree and of the order directing payment to the attorney of his claim against plaintiff, there being no supersedeas when the money was applied, gives the defendant no claim against the attorney.</p> <p>3. A defence upon equitable grounds, -which sets up as the substantial equity a defence at law, such defence at law having been already interposed by plea (such plea being a good plea,) should be disallowed.</p>

Writ of Error to the Circuit Court for Duval county. This case was tried before Mr. T. A. McDonell as a Referee. The other facts of the case are stated in the opinion.

Suwannee and New River counties were created from portions of the territory of Columbia county. Columbia county had subscribed for and received stock in the Florida, Atlantic and Gulf Central Railroad Company.

The former appeal referred to in the opinion was dismissed at the June Term, A. D. 1880, on account of the failure of the appellant to file in this court a transcript of the record and proceedings, as required by the statute and rules of practice. The other facts are stated in the opinion.

<p>Appeal from the Circuit Court for Duval county, to which court the case had been transferred from Clay county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

The General Assembly of Florida passed the following act, which was approved by the Governor December 27th, 1856, entitled “An act to benefit Commerce:” '“ Whereas, It is for thé benefit of Commerce that wharves be built and ware-houses erected for facilitating the landing and storage of goods; and, whereas, The State being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving the water lots…

<p>A Court of Equity has uo jurisdiction to enjoin.proceedings on a mandamus, where the parties seeking redress by such proceedings are not the' plaintiffs in equity.</p>

This is a suit in equity brought in Madison county by Gf-eorge W. Hampton and his wife, Susan A. E. Hampton, against William P. Marvin, surving partner of the firm of J. M. & W. P. Marvin.

. The appellee, as Collector of Revenue of Jefferson county, levied upon and advertised for sale lands of the appellant to collect the taxes. The bill alleged that the sale would cloud the title to the lands. The other facts are stated in the opinion.

The intestates mentioned in the bill, and of whose estates T. H. Willard is administrator, are Lewis I). Whitlock and Benjamin E. Whitlock. The appeal was brought to the January Term, 1880, and the opinion as to dismissing it was filed at that term. There was no motion to dismiss. The other facts bearing on the question of dismissal are stated in the opinion.

<p>When pending a suit in equity to enforce the specific performance of an agreement to convey lands, the principal defendant dies, the suit abates, and must be revived as prescribed by the rules and practice of the court against the legal representatives, before decree can be made in that suit directing a conveyance.</p>

<p>Appeal from the Circuit Court for Orange county.</p> <p>The facts of the ease are stated in the opinion.</p>

<p>1. In a complaint under the law-relating to bastardy, it should be stated, affirmatively on oath, that the mother of the bastard child is a single or unmarried woman. The recital by the magistrate is not sufficient.</p> <p>2. The act relating to bastardy requires a sufficient complaint to be made before a Justice of the Peace, and the Circuit Court can ob tain jurisdiction only in the manner prescribed by law.</p> <p>3. The remedy in cases of bastardy is a special proceeding provided by law, and the acts relating to amendment of pleadings, do not apply to the amendment of a complaint so as to make a case not stated in the complaint before the Justice.</p>

Writ of Error to the Circuit Court for Duval county. Section 11 of Chapter 3099, referred to in the opinion, provides that “ no person shall engage in or manage the business, property or occupation mentioned in this section, unless ” the license tax be paid to the Collector of Revenue and license issued by the Clerk of the Circuit Court, as provided therein. The amount of a “ keno” license is specified as set forth in the opinion. The other facts are stated in the opinion.

<p>Writs of Error to the Circuit Court for Duval county.</p> <p>The facts are stated in the opinion and in the preceding case of Overby vs. The State.</p>

Writ of Error to the Circuit Court of Escambia county. The offense with which the accused was charged was discharging and depositing in the waters of Pensacola bay ballast contrary to the manner prescribed by law. Appeals were entered by the State Attorney, Mr. Mc-Kinnon, and the records sent up in this and other cases. The appeals were dismissed on the same grounds. The other facts are stated in the opinion.

<p>1. Iu an indictment against an officer of a corporation for embezzlement of the property of such corporation, the corporate name as fixed by law should appear in such indictment as the owner of the property, and the name of office of such officer as prescribed by law should be truly set out therein.</p> <p>2. Judgment will be arrested when it appears that there is a misnomer in either the name of the corporation or in the title of the officer of the corporation so charged with embezzlement.</p> <p>3. Indictments to be valid should be properly endorsed, as is provided by statute, (Thomp. Dig., p. 522,) either “ a true bill ” or “not a true bill,” together with the name of the foreman of the grand jury.</p>

<p>A judgment on an indictment for obtaining property under or by reason of false pretenses, which indictment does not contain an allegation that the party was induced to part with the ownership of the property by reason of the alleged false pretenses, will be arrested.</p>

The petition for a writ of habeas corpus was filed in the Supreme Court February 15, 1881. The writ issued on same day, returnable before the court.

<p>1. An act vesting discretion in the owners of one-lialf of the bonds of a city and twenty of its residents, by which they- can dissolve the existing corporation having an elective system of government organized under an act creating a uniform system of municipal government, and re-incorporate the municipality with another and different form of government, under which the principal officers are appointed by the Governor, is unconstitutional. The power and duty o£ the Legislature under the Constitution is limited to the establishment of a uniform system.</p> <p>2. Where the legislative intent is that the whole of a statute shall operate to accomplish an evident end and purpose, if that portion of the act providing for the accomplishment of the final purpose ' is unconstitutional, the dependent and initiatory provisions of the act must fall also. Where an act provides for the dissolution and re-incorporatiou of a municipality, and it is clear that the dissolution is authorized only as a step looking to and a foundation for the re-incorporation, if that portion which provides for'the re-incorporation is unconstitutional, the whole act must fail.</p>

This is a writ of mandamus brought against the respondent, as Clerk of the Circuit Court of Duval county, to compel him to restore Jordan’s name to the registration list of that county, from which it had been erased by the County Commissioners, or to register his name thereon.

Writ of Error to the Circuit Court for Escambia county. Plaintiff in error, who was plaintiff below, furnished material to the extent of $265.03', with which Pickard, one of the defendants below, constructed a house for defendant, Acosta, on Acosta’s land. The house was completed about the 1st May, 1879.

<p>1. That a paper purporting to be a copy of a summons served by the sheriff was not a true copy of the original on which a return of service was made, is not good ground of motion to dismiss the suit, but only to set aside the return of service, if the defect or variance is material.</p> <p>2. A sheriff’s return of due service of a summons in the manner prescribed by law is conclusive as to jurisdiction of parties, unless the same is impeached by satisfactory evidence.</p> <p>3. Where an attorney appears “ specially, not waiving the right to take advantage of errors and defects in the summons, or to move for a dismissal of the cause on account thereof,” this is not a genera^ appearance waiving the very defects indicated.</p> <p>4. Where a clerk has entered defendant’s appearance by an attorney, and the attorney testifies that he did not authorize such entry, which statement is not contradicted, the clerk’s memorandum cannot bind the attorney or the party.</p> <p>5. Where a default is entered for want of a plea, and there is sufficient cause shown for setting it aside and granting leave to plead, and an . order is made to plead instanter, if the time allowed is not sufficient, application should be made to the court to enlarge the time. The judgment of the attorney that more time is necessary is no legal excuse for non-compliance with the order.</p> <p>6. The neglect of an attorney to file a plea under a rule of court fixing the time of pleading; should not operate to the prejudice of the party on his application to set aside a second default, upon his tendering a good plea and an affidavit of merits with a sworn statement showing that he is without fault, especially where the neglect of the attorney was not such as to give a right of action against him for negligence.</p> <p>7. The neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place on account of the serious illness of his wife, even though he might have made arrangements with another attorney to prepare it, or might have notified his client, yet did not do so because of his anxiety for his family, is not such neglect as should operate to the prejudice of his client.</p> <p>8. While the granting or refusal of an application to open a default for not pleading is in the sound discretion of the court, yet this discretion is the subject of review on appeal.</p> <p>9. The taking of original records or papers from the clerk’s office by attorneys without leave of the court is reprehensible, and should not be permitted by the clerk.</p>

<p>1. Where, upon a general view of the case, giving the appellant every fair construction of the facts in his favor, an application of the principles of law controlling the matters involved justifies the judgment, it must be affirmed.</p> <p>2. Where, in a common law action, a defence on equitable grounds consists of matter clearly available as a defence at law, the court, without motion, should strike it out. Such a defence is admissible only when it sets up matter which in the event of a judgment at law equity would on account of the equities set up give him relief against the judgment, and if a party having a good defence at law fails to plead it in the action at law equity will not grant any relief against the judgment. Quere : Whether such a defence is admissible in an action of ejectment?. •</p> <p>3. Under the statute of 1874 the lien for taxes assessed related to the first of March. Such lien attached to the res without regard to individual ownership, and when enforced by sale pursuant to the statute, the purchaser took a valid title m fee.</p> <p>4. A purchaser at a tax sale has, during the period allowed' for redemption, no estate, legal or equitable, in the land. He has a lien for the purchase money and interest allowed.by the statute.</p> <p>5. The owner, occupant, or other party subject to the assessment under the terms of the statute, is the proper person against whom to assess a tax during the period of redemption, and if a sale for taxes thus assessed is had after the period of redemption expires, and after the purchaser at the first sale has obtained a deed, a good title in fee passes to the purchaser at the second sale. The law gives no immunity to the purchaser at the first sale.</p> <p>6. The terms duty and obligation are used in reference to taxes in two senses : the first being in reference to the sovereign imposing the tax, and the second in reference to individual relations. The matter of duty to the State is fixed by the legislative enactment imposing the tax. The matter of obligations between individuals arises from the legal or equitable relations of the parties intei' se. In neither case is an obligation or duty fixed by the mere fact of ownership in the land.</p> <p>7. Every person who has or claims an estate in land has not for that reason a claim or right against every other person claiming or having an estate in the land by which his adversary claimant is bound to pay the taxes.</p> <p>8. Where the tax under which a second sale was had was assessed against a mortgagor in possession during the time allowed for redemption from first sale, there was no duty upon the part of the mortgagee out of possession to the stranger who had purchased at the first sale to pay this tax, and he could bid and acquire a good title at the second sale.</p> <p>9. The general rule in ejectment is that any title acquired subsequent to issue joined must be set up by a plea puis darrein continuance. Where, however, no injustice is done, a tax deed in the hands of the original purchaser may have relation to the day upon which the party was entitled to it, and if such day precedes the date upon which issue was joined it is admissible under the generai issue.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The' facts of the case are stated in the opinion.</p>

Section 9 of the Bill of Rights is as follows: “Every citizen may fully speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or the press.

<p>1. On sustaining a demurrer to a declaration upou tlio ground that the facts stated were insufficient to maintain the action, there being no question of jurisdiction, it is error to dismiss the suit for want of a declaration. The final judgment should have been upon the demurrer, the plaintiff failing to amend.</p> <p>2. In an action for malicious prosecution by causing plaintiff to be arrested upon a criminal charge, the failure of the grand jury to find an indictment and the discharge of the accused by the court, constitute sucb a termination of the proceedings as is necessary to sustain the action.</p>

The respondent moved to dismiss the appeal on the grounds stated in the opinion of the court on the motion. A certiorari having issued, and return thereto being made, and it showing that the appeal undertaking was in the sum of $250, the case was submitted. The facts are stated in the preceding and following opinions.

<p>1. An injunction may be dissolved upon motion and due notice, either before or after answer filed.</p> <p>2. A Court of’ Equity cannot entertain a bill to review and reverse a judgment of a Justice of the Peace for errors committed on the trial and to set aside an execution upon such judgment, or to set aside an execution illegal or void, and to enjoin a levy upon personal property, there being ample remedies at law.</p>

<p>T. The promissory note of a married woman is void. Such note is not effective to bind her person either at law or in equity; neither the Constitution nor the statutes give her to this extent the power of a feme sole.</p> <p>2. Where a mortgage was executed by a married woman and her husband upon her separate property, to secure the payment of a simple promissory note made by her, the bill for' the foreclosure of the mortgage not alleging that the amount so secured was the purchase money promised to be paid by her for the said mortgaged property,' or in any other way showing by his pleading that her separate property should be subject to the payment of the amount claimed : Held, that the complainant could not thus, charge such separate property of the wife for the amount due upon such note and so secured by mortgage.</p>

<p>1. A widow, and the children born of a cohabitation during the divorce proceedings, and subsequent to a decree of divorce granted at the suit of the husband, have an equity, upon the death of the husband, to set aside such decree of divorce if it was procured by the fraud and imposition of the husband.</p> <p>2. The usual method by which the wife may set aside a fraudulent decree of divorce obtained by the husband, is a proceeding upon notice-to tlie husband in the same case. Where, however, the husband is dead, and there are children, the result of cohabitation during the divorce proceedings, and the widow and children seek to set aside the divorce and recover their interest in the estate,, they may proceed by an original bill in the nature of a bill of review against the administrator and the children born before the decree of divorce. Such a bill is not objectionable upon the ground either of misjoinder or multifariousness.</p> <p>3. The right of the “wife” (widow) to letters of administration upon the estate of her deceased husband is not absolute, but conditional upon her application. She failing to apply for letters, others, as provided by .the statute, may .be appointed. -Act of November 20, 1828, Section 7, Duval 169, Thompson’s Digest, 196.</p>

This was a bill filed on the 27th January, 1870, in the Circuit Court for Jjeon county by appellant against William Perkins, and upon his death revived against his administrator, John IT. Perkins. Complainant alleges that at the time of Simpson’s death a mercantile copartnership existed between himself and Simpson ; that said Perkins upon the death of Simpson retained the assets of the firm as surviving partner.

<p>Appeal from the Circuit Court for Leon county.</p> <p>The facts are stated in the opinion.</p>

Appeal froth the Circuit Court for Leon county. The case was decided by Hóri. John A. Henderson as Referee, to whom it was referred by consent of parties. Held: and the entire subject of Mrs. Shear’s embarrassment was fully and freely discussed in all of its details. I had previously acted as attorney for Mrs. Shear , in procuring for her advances from merchants in Savannah, G-a., upon mortgage of the same property mortgaged to Robinson.

<p>Writ of Error to the Circuit Court for Franklin county.</p> <p>The facts of the case are stated in the opinion.</p>

Writ of Error to the Circuit Court for Brevard county. Metzger was indicted for murder in the first degree. After the arraignment and plea-of not guilty four petit jurors were selected, accepted and sworn, among others one Hoke.

<p>1. An indictment for murder, otherwise good iir form, charging' that the prisoner “feloniously, wilfully and of his malice aforethought, with a premeditated design to effect the death of,” &c., is a good indictment under our statute.</p> <p>2. An indictment for murder which charges the crime according to the common law form is sufficient to sustain a verdict for murder without the use of the words, “from a premeditated design.”</p> <p>8. Where it is shown to the satisfaction of the court that there was no misconduct upon the part of the jurors, and it is so certified by the court in the bill of exceptions, the mere separation of the jury is not a sufficient ground for a new trial, especially is this so when the evidence upon that question produced before the court is not brought up in the bill of exceptions.</p>

Chaper 1874, Laws of Florida,- approved February 2, 1872, is as follows: Section 1.

<p>1. Wbe'n the Legislature.divided New River (Bradford) county it was competent to provide that the new county created out of its territory (Baker) should assume its pro rata share of the indebtedness of the former, to be ascertained by the relative valuation of taxable property in each, at the time of the division.</p> <p>2. The obligation of Baker county to issue its bonds or to pay its debts in the manner provided in the act creating the county passed in 1861, is not affected or controlled by subsequent constitutional or legislative enactment. The obligation of the contract cannot be thus impaired.</p> <p>8. Before Bradford county can proceed to compel Baker county to issue bonds for its pro rata share of the bonded indebtedness of the former to Columbia county, (from which Bradford was taken) it must appear that Bradford had issued and delivered its bonds to Columbia county.</p> <p>4. Under the act of 1861 creating Baker county it was made a condition precedent to demanding the issuing of bonds by Baker to Bradford that the pro rata of the shares of the capital stock in the Florida, Atlantic & Gulf Railroad Company held by Bradford county should be: “.set'apart-” to Baker county. , ¡ .</p> <p>5. The depreciation of the railroad stock in the possession of Columbia or Bradford county since 1861, for the purchase of which the original bonded indebtedness was created, constitutes no . valid reason for the refusal, on the part-of Baker county, to pay its proportion of the indebtedness.</p> <p>6. The fact that Baker county was not -a party , in mandamus pro ceedings of Columbia against Bradford county does not affect the liability of Baker county ; nor does the. judgment in that case preclude Baker county from showing the true amount of her liability to Bradford in any proceeding by Bradford against Baker to compel a contribution of a pro rata amount of the indebtedness of Bradford to Columbia.</p> <p>7. A return to an alternative writ of mandamus should, for the purpose of making an issue, set up a positive denial of facts stated, or should state other facts sufficient to defeat relator's right. A mere answer that a sum stated is not the correct amount is not sufficiently specific.</p> <p>8. Under the law in force in 1861, the Judge of Probate was ecc-officio chairman of the Board of County Commissioners. The County Judge who succeeds to the Probate office is not now a member of the Board, but the Board as now constituted is tlie successor of the former Board, and the same duties devolve upon it, except as its duties have been modified by law.</p>

<p>Certiorari to the Circuit Court for Duval county.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>No motion to quash was made by respondent.</p>

<p>1. A common law writ of certiorari does not serve the purpose of a writ Of error or appeal with a bill of exceptions as known to our practice. If the court has jurisdiction.and there is no irregularity or illegality in the procedure the certiorari must be quashed.</p> <p>2. The proper method of reviewing the proceedings of the Circuit Court upon a certiorari issued by it is not a certiorari but an appeal at law or writ of error, and the general rule is that where an appeal lies a cei'tiorari will not be granted. The case of Haliday vs. The Jacksonville Plank Road Company, 6 Fla., 304, referred to and approved.</p>

This was a proceeding in the Circuit Court alleged by the appellees, Jacob Mason Wilcoxon, Redessa Minerva, J. T. and Ella A. Wilcoxon, John W. and Emma E. Rusk, Samuel JB. Simpson and Eelix Albright, Lydia and John Steelsmith, to have been upon certiorari, the appellants denying that any certioraii had ever issued, and at every stage of the proceedings where the question could be raised protesting that no such writ had issued.

<p>1. That there is no bill of exceptions or an incomplete one in a record is not ground for the dismissal of an appeal or to strike the case from the calendar. There may be errors apparent upon the record other than those arising upon exceptions.</p> <p>%. Where a bill of exceptions, apparently regular, is signed as required by law, an allegation of counsel unsupported by proof that since the original bill was signed there have been “interpolations,” will not authorize the dismissal of the appeal.</p> <p>3. Where papers are referred to in the bill of exceptions filed in the Circuit Court, with sufficient certainty to identify them, the insertion of the papers in extenso in the record prepared for this court is proper,</p> <p>4 Where the books of the Assessor of Taxes are introduced in evidence ■ in the Circuit Court it is not necessary to copy the entire book in. the record sent here. It'is sufficient to insert such portion of the book as it was introduced to establish, or was deemed pertinent to the questions sought to be raised, or the original may be brought to this court as authorized by the rules of practice. Where neither the part deemed pertinent to the question sought to.be raised, nor the books accompanying the record, aré sent to this court, the proper course is to award a certiorari to bring them up.</p> <p>5. Time having been given during the term at which the case was tried to prepare and ténder a bill of exceptions, and the Judge presiding at the trial having gone out of office, it is proper and legal for his successor to settle and sign the bill. (Hays,- Adm’r, vs. McNealy-, 16 Fla., 406, referred to and approved.) Upon a tender of the bill to such successor, and his refusal to sign it in the presence of three parties who were present at the trial, it is proper for them, under the rules and statute, to sign it if it correctly presents the testimony and proceedings according to their recollection.</p> <p>6. A bill of exceptions, regular in form, properly prepared and attested according to law, imports verity ; and its truth cannot be questioned in this court upon appeal by the affidavit of counsel, based upon their own knowledge, or upon the rex>resenfcation of others.</p>

The respondents sued the appellants in the Circuit Court for Duval county in ejectment to recover lot 5, in block twenty-six, in the City of Jacksonville. The defendants pleaded the general issue, not guilty. Possession of the defendants and the execution of the deeds of the respective parties were admitted. The evidence upon the trial was substantially as follows: Eor the plaintiff — Deed of I. D. Hart to Earley Sams conveying this lot.

On the 14th day of September, A. D. 1880, Albert Fries brought his action in Duval county Circuit Circuit against Dunbar J. Paul, John L. Bonnell and ¥m. Gruber in ejectment to recover possession of the east half of lot four in block twenty-eight, according to Hart’s map of the city of Jacksonville, bounded on the south by Duval street, on the east by Ifiberty street, on the north by lot eight in said block, and on the west by the west half of said lot four, situated in the…

The deed of May 26th, 1834, was acknowledged by the grantors therein before the grantee, Isaiah D. Hart, Clerk of the County Court for Duval county, the day of its date. The other facts are sufficiently stated in the opinion.

<p>Writ of Error to the Circuit Court for Duval county. •</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for .Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

Writ of Error to the Circuit Court for Duval county. The affidavit referred to in the opinion is as follows: John A. Henderson being duly sworn says: That as an attorney of this court he was engaged by the plaintiff in error to prosecute the above cause in the Supreme Court of Florida; that he caused the writ of error to be obtained, and that since the present session of this court he has been continuously engaged in and about matters connected with his practice, much of the…

<p>1. Under the law of this State permitting a party to plead and demur . to the same pleading at the same time, it is proper to allow a demurrer to be filed ón a day subsequent 'to the filing of a plea ' in bar, it being the intent of the law to allow issues of law and of fact to exist at the same time. .</p> <p>2; Lands’are described in a declaration in: ejectment thus : “Lots pne and two of range thirty-one, east, township nineteen, south, and fractional section thirty,” and on demurrer that the description was so vague that the lots could not be identified ; it is held that the language imports that lots one and two are parts of the range, township and section named, and the description is sufficiently intelligible and definite.</p>

Writ of Error to Circuit Court for Escambia county. The order of dismissal, after stating the court and the title of the case, is as follows : The plaintiff having failed to file a declaration herein on the next succeeding rule day to which suit was brought, as required to do by rule 13, the case, therefore, stands dismissed at said plaintiff’s cost. E. E. DE la Rua, June 6,1881. Clerk Circuit Court, The other facts of the case are stated in the opinion.

<p>A claim against a person for withholding the proceeds arising from the sale of goods consigned to him to be sold on commission, is not a debt contracted by him in a “fiduciary capacity,” within the meaning of the bankrupt law of 1867.</p>

Writ of Error to tlie Circuit Court for Escambia county. Yaughn declared against Albert Hyer and W. K. Hyer as partners, and afterwards amended the declaration by inserting in it by interlineation -the style of defendants, so as to read, “ partners, under the firm name and style of Hyer Bros.” Precisely when'this amendment was. made is not shown. The declaration was in assumpsit, and at'first contained' .but one count.

<p>1. A contract to deliver a certain quantity of timber at so mucli per foot, to be inspected, and to be delivered “as fast as water will permit, and to be completed not later than June 15, 1880, payment cash on handling specifications,” is an entire and not a severable agreement.</p> <p>3. On, delivery of a portion of such, timber, duly inspected., the purchaser refuses to pay the full, price but deducts $300, being the amount of a draft previously drawn on him by the seller^ which the '' purchaser falsely says he has paid, on the faith of which statement ,1 - delivery was made, and the $300 remains unpaid. This is nota . •. compliance by the purchaser, and is, such a breach of the contract that the seller may refuse further delivery under it.</p> <p>8. After such breach, (the purchaser having assigned the agreement for the benefit of his creditors) the assignor in his own right, or for his ': ' assignees, cannot recover damages for subsequent non-delivery to : him. , , ,</p> <p>4. The assignee of such a contract takes it subject to all defences available against the assignor.</p> <p>5. The purchaser of a certain quantity of timber under a contract to pay for it on delivery, from time to time, by becoming insolvent and making an assignment for the benefit of creditors, is disabled to perform, and thenceforth neither he nor his assignees can claim damages for future non-delivery to the assignees, with whom the seller did not contract.</p> <p>6. In a declaration in a suit by the purchaser against the seller for breach of a contract by the seller who engages to deliver 3,500 pieces of timber “ as fast as water wrill permit, and to be completed not later than the 15th of June,” it is essential to allege that the water was such as to permit the delivery, this being evidently a condition of the contract to deliver.</p> <p>7. A demurrer by a plaintiff to a plea of the defendant roaches essential defects in the declaration, and if that be defective the demurrer to the plea should not be sustained.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. At a sale on execution tlie purchaser takes only the interest of the defendant in- execution.</p> <p>2. When a purchaser of land receives a deed and enters into possession, and continues in the actual occupancy, but does not record his deed, such notorious occupancy constitutes sufficient constructive notice to “subsequent purchasers or creditors’-’ to protect the holder of the deed against the creditors of the grantor.</p>

This is 'an .original motion in,-this court by the .appel-, lant. The facts are stated ■ in the opinion.- ■ , < !-.<■•! ■., -,,,

<p>Writ of Error to Circuit Court for- Alachua county.</p> <p>The facts of the case are stated in the-opinion.</p>

<p>Appeal from the Circuit Court for Escambia county. ■ ■'</p> <p>The facts of the case are stated in the-opinion. "</p>

- The bill in this case was filed by appellees to obtain payment of a sum of money alleged to be due from Mrs. Blumer, the wife of co-appellant, for.merchandise sold by them to her out of her separate personal property. .

<p>Appeal from the Circuit Court for Escambia county.</p> <p>The facts of the case are stated in the opinion.</p>

Appellants filed a bill against Philips for the purpose of procuring his removal from the office of trustee.

This suit was commenced in Leon county and transferred to Madison.

<p>Appeal from the Circuit Court for Madison county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>The actual uso and occupation by the owner and his family of premises designed as a homestead, is essential to impress the property with that character. The mere intention, at some future day. to repair and occupy them as such, where such intention is not manifested ' by acts as well as words, is not sufficient.</p>

<p>1. A married woman may, under the laws of this State, charge her sep - arate property by mortgage to secure a note signed by herself and her husband ; and she may charge her separate property to secure any indetedness contracted by her for the benefit of such property or estate.</p> <p>2. A decree in a foreclosure suit that the defendants, mortgagors, (husband and wife) pay the amount due within a certain time, and in default thereof, that the mortgaged property be sold, c%c., is not a personal judgment or decree against her for money.</p> <p>3. A decree against a mortgagor for any deficiency of money due after deducting the .amount realized on the sale, maybe entered under the general prayer of the bill.’ See Equity Buie 89, which authorizes such decree and execution therefor.</p> <p>4. A contract entered into by a person so intoxicated as that he is incapable of transacting business intelligently, is voidable by such person.</p> <p>5. When a married woman has been induced by artifice to purchase property at a price far beyond its value, and her husband joined her in giving a promissory note and in executing a mortgage on the same property and other of her'separate property, the husband being intoxicated and unfit to transact business at the time of exe- ' euting the securities, though the circumstances may have been such as to justify a rescission of the contract by a decree in equity, yet the parties cannot by answer set up such matters as a defence in a suit to foreclose the mortgage.</p> <p>6. The remedy of such mortgagors is to file a bill or a cross-bill to rescind the entire agreement after tendering a reconveyance and placing the other party in statu quo.</p> <p>Decree affirmed with directions that the court order the sale of a eer- . tain portion of the. premises before selling the other part thereof, if the defendants so desire.</p>

Johns county. The bill, as originally filed in this case, was brought by Lucinda M. House, a married woman, in her own name, and not by her next friend, against a judgment and execution creditor of her husband and the sheriff', who had advertised for sale property which she alleges was her property.

The bill states that the said defendant purchased certain real estate near the town of Leesburg, in the county of Lou-don, in the State of Virginia, for which he was to pay the sum of one thousand dollars; that defendant received from 'complainant’s uncle’s estate, her separate property, at one time two hundred dollars and at another, from oratrix’s father’s estate, one hundred and thirteen dollars,'which said amounts were paid by said II.

The appellant filed his bill in chancery in- the Circuit Court of Marion county against the appellees, Barton H. Thrasher personally and as trustee for his wife, L. A. Thrasher, and her children, William A. Dickinson, Early W. Thrasher personally and as trustee for his wife and children, and George W. Means as trustee for Mattie S. Means and her children, charging as .follows : That on June 1st, 1875, Barton H. Thrasher solicited appellant to indorse for accommodation six…

<p>1. A bill is not strictly a bill of- discovery if it prays a discovery of facts when the discovery prayed and the allegations are not separate and distinct from the main object of the bill.</p> <p>2. When a remedy in equity exists, and a remedy at law is created, the equity jurisdiction is not destroyed unless by express terms of the law.</p> <p>3. Upon bill filed to charge property with debts contracted by an alleged owner for improvements thereon it is disclosed that the property is the separate estate of a married woman and her children, who are not parties to the suit, the bill should be amended by making- them parties with proper allegations to establish the liability of their estate! ' -</p> <p>4. The estate of a married woman is.not chargeable in equity merely by reason of a statutory lien for buildings and improvements, but because if she contracts such a debt it is implied that she means to pay it, and if she has a separate estate that is the fund out of which payment is contemplated.</p>

Peter Q-. Snowden, on the 26th of November, 1880, recovered a judgment at law in the Circuit Court of Alachua county against Peter M. Oliver, and had a fi. fa. issued therefrom. On December 2d, 1880, Oliver filed in the County Judge’s office of Alachua county a schedule of his real estate that he desired and claimed to be exempted as his homestead, embracing therein the .land levied upon under the above execution, embracing 21 acres of land situated in the county.

<p>1. As'between landlord and tenant the tenant cannot claim an exemption from levy and sale of the products of the land rented as against the claim for rent or for supplies furnished by the landlord to support the tenant and his family or to cultivate the land, the title of the tenant thereto being subordinate to the lien created by the statute.</p> <p>2. An exemption of personal property from forced sale under legal process, to the extent of $1,000 in value, may be claimed under the Constitution, by a tenant entitled to claim exemption when his property is levied upon for the satisfaction of a claim for rent or supplies furnished by the landlord ; but such exemption cannot be claimed out of the products of the land rented where an express lien exists under the statute.</p> <p>3. A suit in equity cannot be maintained under the law of 1881 against a sheriff to enjoin him from taking proceedings to appraise and set apart personal property levied upon which is wrongfully claimed by a debtor to be exempt from forced sale, unless the sheriff actually does or threatens to do some act upon such wrongful claim tending to the injury of the creditor.</p>

<p>Appeal from the Circuit Court for Sumter-county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Sumter county.</p> <p>Spivey filed his bill against Ward, Dozier and Morrisette, alleging that in 1866 he took possession of forty acres of land then belonging to the Trustees of the- Internal Improvement Fund, subject to pre-emption and sale, and with a view of ultimately purchasing it erected a dwelling-house thereon, cleared and fenced a part, cultivated and planted orange trees, and made other improvements, and continued to live upon it and occupy it as a home for himself and family until the present time. . In 1875, fearing that some one might enter it, he applied to Ward, who was a relative, for a loan of money for the purpose of buying the land. Ward, agreed .to lend him the money provided the title papei's should remain in his hands as security for the loan. Ward knew all the facts relative to the settlement, cultivation and occupancy by Spivey. Soon after Ward saw the -agent of the Trustees and entered the land, paying forty dollars therefor, and had the title made to himself, the deed bearing date April 3d, 1875. Soon after that Ward informed him that the land had been entered for his benefit. Spivey did not then know that the entry had been made in Ward’s name, and on speaking to Ward about it he said the deed was so taken as security for the money so loaned and advanced, and that he would execute to him a deed on payment of the money. Ward lived but a short distance away from the land, and knew of all the improvements made by Spivey, which were made both before and after the purchase, and Ward never made claim of ownership until June 12, 1880, when Ward conveyed the legal title to Dozier and Morrisette.</p> <p>That the improvements made, on the land by Spivey were worth $1,500 ; that June 14,1880, he offered Ward the money he had expended in entering and securing the land and demanded a deed of the same, and Ward refused the money and declined to give a deed. Spivey offers now to pay to Ward, or to Dozier and Morrisette, if they are entitled to it, whatever sum may be'adjudged due him or them on account of the said advance.</p> <p>The bill charges that Dozier and Moirisette had full knowledge of all complainant’s .claims and rights before the conveyance to them by Ward.</p> <p>The bill prays ' that it be ascertained what is due on account of the advances and purchase by Ward for him, and that the defendants be required to accept the amount and to execute to him a conveyance, and for general relief.</p> <p>The defendant (Ward) appeared but did not answer. Dozier and Morrisette admit knowledge of the complainant’s occupancy of the land from 1866 to the time of purchase by Ward, and of his making improvements by erecting a house and otherwise. They deny any knowledge or information of the agreements between Ward and complainant in relation to the purchase and advances alleged, and say that it was without legal validity; that it appeared of record that Ward had the legal title, and that on June 12,1880, Ward and his wife executed to them a deed of conveyance of the land, which was recorded June 14,1880. They have no knowledge or information that Spivey, on June 14,1880, offered to pay Ward the money he had paid out in securing the land, but they allege notice to complainant of the conveyance to them by the record thereof on the day of the alleged offer. .They deny any knowledge of the alleged rights of complainant by reason of the agreement with Ward, or of any equities in complainant; “ that they bought the land in good faith and for a valuable consideration, and paid $850 in cash and gave their note for the balance, and that Ward was considerably in debt and was compelled to sell his property to pay the samethat Dozier offered, before the purchase by him and Morrisette, to lend the complainant money to buy the land if he desired to purchase the land, but complainant declined the offer, and complainant was thereupon notified that Ward had offered it for sale and that he and Morrisette had an idea of buying, and yet the complainant did not notify him that he had any claim, right or equities thereto, or desired to purchase, and defendant knew of no right but possession.</p> <p>There was a general replication and testimony was taken. Spivey testified that he had known Ward forty years, Dozier ten years and Morrisette one year; that he went on the land in 1867, and had remained there ever since, and improved it by clearing, building and planting an orange grove. The value of it is $3,000. “ The way the entry came to be made, I borrowed from Mr.. Ward to make the entry. I came here on Saturday, understood that Mr. Corley, the land agent, was to be here that day, and I brought my numbers intending to give Mr. Corley my numbers and money, and I remained here till late in the evening and he did not come in, and I asked Mr. Ward if he would see Mr. Corley when he went through and give him the numbers and money. Mr. Ward told me that he would do it, and he said to me about two weeks after, that the title has come, it is all right; and I says to him hold on to the title as security for the money until I pay you your money. •</p> <p>“ Defendants, Dozier and Morrisette, had a conversation with me, I think in June, on Saturday evening, about the middle of the afternoon or later, at the south end of Mr. Turner’s .old store; that was the first conversation between me and Mr. Dozier. Mr. Dozier took me out from Mr. Turner’s store, said he wanted to see me. Says he, I have been out to look at your place this evening. I asked what he went to look at my place for. He said Ward was trying to sell it to him, and that he would buy it if all parties was willing. And I says to him all parties is not willing. And he says well, he is going to sell it to somebody, and had you not as lief I buy it as anybody else. Says I to Dozier anybody that knows how that place lies are not going to buy it; says J, he has carried out other parties there, and when they found out how it was they were gentlemen enough not to buy it. I don’t recollect much more conversation between us at that time. After* that awhile Mr. Dozier went to Mr. Morrisette and Mr. Gibbons, beside Mr. Chaplins, and they were talking there awhile; they then came back to me near Mr. Turner’s front porch. I told them then that Mr. Ward had no right to sell the place, the place was mine. Well, Mr. Dozier says, Mr. Ward has a title for it, and I think I will buy it, and I asked him as a Mason not to have anything to do with it. I heard a conversation between Mr. Mabry, Dozier and Morrisette early on Monday morning. I went down to Mr. Mabry’s before day, and Mr. Mabry came up very early. We met Mi*. Morrisette on the side-walk in Lees-burg. Mr. Mabry told him not to pay anything on the place, that I claimed the place. We went to Mr. Dozier’s place, called Mr. Dozier out, and Mr. Mabry told him not to pay anything on the place as I claimed the place. When I took possession the lands were worth one dollar per acre. I took possession of .it as State land, with the intention of buying it. Since April 8, 1875,1 have reset half the grove and cleared six or seven acres; the value of these improvements is about pne thousand dollars. In 1877 I offered Ward a young horse; I told him to give me twenty-five dollars and a deed to the place; he declined ; he said I was not able to do so and support my family, and he could wait longer. He never demanded payment from me.” ■ ■'</p> <p>J. S. Dyches testified: I heard conversation between Spivey and Ward before the entry of the land. Mr. Spivey came to Mr. Ward to borrow’ money to enter the land, as he, Spivey, thought at the timé there were other parties who wanted to enter it. Mr. Ward told him he would enter the land for his benefit, and hold the papers until Spivey was able to redeem with interest. It was agreed between them that Ward should do so. Ward has resided within half a mile of the land so entered for the past three years. Mr. Dozier has resided in and about Leesburg since 1866. The value of the improvements on the land on the 12th of June, 1880, was $2,500 to $8,000. I heard a conversation between Ward, Dozier and Morrisette in reference to Ward’s surrendering the property he had received from them in payment for the land. I was called on by Mr. Ward to witness the tender. There was some trouble in regard to the payments to be made by Dozier and Morrisette. They wanted to withhold a part of the payment until the trouble between all the parties was settled. Ward refused to have any withheld, and told them he would pay back the amount he had received from them if they would caucel the deed. Mr. Spivey, Mr. Ward and myself have talked this matter over and over. Mr. Ward always acknowledged that Spivey was entitled to redeem the land by paying him the entering fee and interest.</p> <p>Martha E. Spivey testified that she is the wife of George W. Spivey ; lived about three miles southeast of Leesburg for fourteen years. “ There was no improvements on the land when we first went upon it. There are now buildings on it, an orange grove, and twelve or fifteen acres cleared. At the time of the entry of the land Mr. Ward proposed to furnish the money and hold the title until the money was paid by Spivey. Spivey was to meet Mr. Corley in Lees-burg, and Ward was to let Spivey have the money that day. Mr. Spivey was at that time destitute of means. I had a conversation with Mr. Dozier in regard to himself and Morrisette purchasing the land from Ward. Dozier said he had come to buy the place1 if it was agreeable. I told him we did not want to .sell; we wanted it for our home. I told him the agreement between Mr. War’d and Mr. Spivey was that Mi’. Spivey was to have the entry money and the interest that was due him. Mr. Dozier then said to Mr. Ward that he ought to make me or Mr. Spivey a title. When Mr. Dozier went away he told me I need not be uneasy as he would not buy the place. I told him if he did we would not give him possession. This conversation took place about twelve or one o’clock on the Saturday on which he bought the place at night in the month of June, 1880. Mr. George Ward, W. J. Ward and Mr. Morrisette were present. I asked Mr. W. J. Ward why he brought Mr. Dozier and Mr. Morrisette here. He said they came over to look at this land. I told him I did' not want him to bring any more men for that purpose; it looked as if he did not want to come up to his agreement. He said I did not need be uneasy, that he was not going to let Mr. Dozier have the place." I told Mr. Dozier of the agreement between Mi’- Ward and Mr.' Spivey before the land was entered. Mr. Dozier said he would like to buy the place provided Mr. Spivey and I were willing. He said he would not want the place if it were not for the orange grove.”</p> <p>John W. Thomas testified : I heard Mr. Spivey tell Mr. Dozier not to buy the land unless he bought it from him. Mr. Dozier said he might as well buy it as anybody, as Mr. Ward would sell it to somebody. This was about three'P. M. on Saturday, 12th of June, 1880, at the south side of Turner’s old store.</p> <p>J. W. Lees testified: I am the deputy clerk who took the acknowledgment of a conveyance from Ward and his wife to Dozier and Morrisette. The acknowledgment was taken on the 12th of J une from fifteen to thirty minutes after eleven o’clock P. M. at the residence of W. J. Ward, three or four miles from Leesburg. I went at the instance of Mr. Dozier.</p> <p>Mr. Cureton testified: I heard a conversation between Mr. Spivey and Mr. Dozier at the east side of Turner’s old store, between three and four o’clock P. M., on Saturday. Mr. Spivey said to Mr. Dozier, you nor no other man can get that place until I am satisfied. I was present on the place where G. W. Spivey resided. Mr. Dozier and Mr. Morrisette were there. It was the Sunday evening after they said they had bought the night before. Mr. Spivey says: Mat, I suppose you have bought the place. Mr. Dozier said : I have. Spivey said: I asked you yesterday, as a Mason, not to buy this place, and you promised me you would not. Mr. Dozier said: I was wide awake when I bought this place; I was not asleep.</p> <p>W. M. Goodson testified: I had a conversation with Dozier and Morrisette in June, 1880. Dozier asked me whaPI knew about the titles, and I told him that they were in W. J. Ward’s name. Dozier said Ward had bantered him to sell it to him and he was going out to look at it; but don’t know whether I will buy it unless it is satisfactory to Mr. and Mrs. Spivey. He asked me if I did not think Mr. Spivey ought to have something for the improvements. .Had a second conversation with Mr. Dozier on Sunday morning on the Spivey place. He called me one side and told me: I have bought this place, and have not paid the purchase-money. He says: I am sorry for Mr. Spivey, and do not think he ought to lose the improvements; and he wanted him to have pay for them, and wanted me to speak to him and tell Spivey if he would meet him at Leesburg on the next morning he could have him garnisheed and stop the payment. On Saturday night, between 9 and 10 o’clock, Dozier and Morrisette called at my house, and Dozier said he had bought the place and was going to draw-up the writings.</p> <p>M. W. Dozier, one of the defendants, testified: "Ward had been trying to sell me that place two or three months. After examining the records I found it was his latid. ' I saw Mr. Spivey and told him Ward wanted to sell me the place he lived on, and wanted to know if it was all right. He answered me that it was not. I asked him why, and he answered me that that was his business. I asked him if he knew that the title was in Ward’s name. He said he did. I asked him what claim he had on it. . He said he had done the work that was on it. I asked Mm if he owed Ward anything on the glace. He said he did. I asked him why he did not pay it and take a deed. He said he did not have the money. I told him-I would lend him the money provided he would pay me interest like I would have to pay if I borrowed.' He said he .’would not do it. I told him if he did not settle that evening I should buy it. We closed the trade that evening with Ward for seven hundred dollars, half cash and half payable in January. We agreed to draw up the deed that 'evening as Ward wanted to go to Hernando very early Monday morning. He gave us the deed and we paid him early Monday morning. Next morning (Sunday) we went over'to the place. I told Mr. Goodson that we had bought the Spivey place, and asked him if he thought Spivey knew it, and told him he could tell him of it if he wanted to. Directly Spivey and. Goodson came up. Spivey said I suppose you have bought it. I told him yes. He swore and was very mad. I told him I thought he could get pay for his labor; I told him he might save seven hundred dollars, if there was that much due him, if he -would be at Leesburg very early on Monday morhins:. He said he did not -want seven hundred dollars for that place; that he would not take less than a thousand. The seven hundred dollars I meant that we had not paid Ward, nor would until Monday morning ; and that he garnishee us. He came down Sunday night, and he asked me to detain the payment until he could get to Mr. Mabry. I did retain it after Ward had sent for it the next morning about one hour. I had agreed to pay Ward by day-break the next morning. A few minutes after T had paid it to Ward Mr. Mabry and Mr. Spivey came to my gate and told me not to pay it. E told them they were too late, T had paid part of it. My information E had in reference to Spivey’s interest in the land was from rumor and the fact that Spivey lived on the place, and did not think any sensible man-would live on another man’s land, for which he had no showing, the length of time he had. E had no direct information that Spivey had any interest in the land. I saw him move on the place in the year 1868 ; he'has resided on the place since he moved there. The trade was closed sometime between one and four o’clock in the evening after I had the conversation with Mr. Spivey. The deed was signed sometime before midnight Saturday night, and I. made the first payment sometime between day-break and one hour by sun on the next Mondaj' morning. The first payment consisted of a horse, a mare and a buggy. A few days after I paid fifty dollars. This is all I paid on said land except an account of forty-one dollars, which Ward agreed to allow on settlement; besides,! have obligated to pay for Ward’s attorney’s fees in this ease one hundred dollars. I delivered the personal property mentioned in the first payment to Ward’s son-in-law and Ward’s wife on Ward’s verbal order. When Mr. Mabry notified me that the land was Spivey’s I had already told Curryl the son-in-law, and Mrs. Ward where the harness and buggy were, and they could get them whenever they got ready. E considered it a delivery of the property. When I received the information from Mr. Mabryldonotknowwhether the property had been taken from my premises or not. I did not go to see nor make any effort to prevent them from taking it. I recollect hearing Ward tell Spivey’s wife that if George would pay him his money he would make Mm a deed ; that was the day I went to look at the place and before I made the purchase. I think that Ward told me that Spivey got him to enter this land provided Spivey would pay him the money. When Ward was keeping bar-room here he told me that Spivey came to him to get him to enter the land in his (Ward’s) name and hold it some three or four years, and if Spivey paid him the money he was to make Spivey a deed, else if he did not pay he said to him, if I don’t pay you the land is yours. Ward told me that he told Spivey that he would not do it, and the next time Spivey came to town and brought his wife. She got after him, he was sorry for-them, and entered the land at her request so they could have a home, and he had to feed them ever since. When I went to buy the land from Ward he told me he couldn’t yet his money out of him, and that he had let him live on his land so long they thought they owned it, and that the old scoundrel tried to swindle him out of his cattle, and he was not going to wait aiy longer, and he told Spivey’s wife that if they would pay him his money he would' make them a deed. The reason the deed was made about midnight on Saturday night was that Ward, wanted to go to Hernando early Monday morning.</p> <p>George P. Lovell testified in' relation to lending money to Ward four or five years before and taking a mortgage from him on this laud. Does not know that Spivey’knew of it. Ward said something about Spivey entering the land, ór he had entered it himself, but the land was intended for Spivey.</p> <p>James G. Gibbons testified that he was present at conversation on the Saturday in question near Turner’s store between Dozier and Spivey, Morrisette and others being present. Dozier told Spivey he would -buy the land from Ward if Ward would stick to his proposition. Spivey made some threats against Ward if he should sell the place. Dozier asked him why he did not pay Ward and take the deed himself. Spivey said he did not have the money. Dozier offered to let him have the money by paying interest if Spivey Avould give him .a mortgage. Spivey would not do it. Ward then came up, and Spivey Avent away. Understood in the conversation that Spivey told Dozier that if he bought the place from Ward it would do him no good, as it was his own, and that he would shoot or kill the man that attempted to put him off.</p> <p>J. B. Morrisette testified to various conversations with Spivey and Ward. The first he heard about Spivey claiming the land was through his AVife the day we went out to look at the land on the Saturday we purchased. She said they had done a great deal of hard work on there, and it Avas wrong in Mr. Ward to sell the place from under them. Heard Spivey say in Leesburg that afternoon that he had improved the land and did not intend to be driven off from it. That whoever bought the land it would not do those persons any good. Dozier offered to loan him the money to secure the land if Spivey Avould secure him for his money. Spivey did not seem inclined to do it, Spivey said that he knew that he could not hold the land by law, and that he would he taken to Lone Oak grave-yard before he would be moved off the place. He (Spivey) said that he went to Ward and told him that there had been two or three parties out there to look at the land, and that he was afraid they would enter him out, and that he would rather he (Ward) would have it than anybody else. He (Spivey) said, I think, that if he should pay Mr. "Ward in a certain time lohat he owed him (don’t reniember the time) that he (Spivey) was to have the land; that Ward was to make him a deed. Spivey said that Ward entered the land with that understanding. Don’t remember that Spivey said the time nor the amount that he was to pay Ward. He (Spivey) said that the time had expired, and he knew he could not hold it by law. He (Spivey) made no leyal claim to the land at that time. Witness had a conversation with Ward before the purchase of the property from Ward, in which Ward said Spivey told.him there were parties prospecting in his neighborhood, and that he wanted Ward to enter the land as he was owing "him, and if he never paid him he (Ward) have the land. He (Ward) entered it with that understanding. Thinks that Ward said that if Spivey paid him he would have the land. I,was satisfied from what Mr. Dozier told me as to the record, and from what Mr. Ward told me, that the title was good, had no notice of any legal claim on the land except that of Ward, nor of anybody else having any interest. All the payments that were made on the land were made by Mr. Dozier. I settled with Mr. Dozier about a week after, and after a conversation between Mr. Mabry and myself. This conversation was an hour or two after Mrs. Ward and Dan Curry took the property out of Dozier’s stable and premises. The conversation was about niue or nine and a half o’clock in the morning. I mean, when I said in my examination that I had no notice of any legal claim except what Ward held, to except also what I heard from Mrs. Spivey and Mr. Spivey in previous conversation, which I have related.</p> <p>Mrs. C. A. Smith testified: I heard Mr. Spivey tell my husband that the title to the land was in Mr. Ward’s name, and he was liable to sell at any time.</p> <p>Question — Did you ever hear Mr. Spivey say that Mr. Ward bad a right to sell the land, and could do so if he chose ?</p> <p>Answer — I heard Mrs. Spivey say so ; never heard Mr. Spivey say so. Tie was not present when she said so. This was about two years ago.</p> <p>M. H. Mabry testified: I went to the house of defendant, Ward, on the 14th of June, 1880, before 12 o’clock; told Ward that as attorney and agent for Mil Spivey I had come to pay him the money and interest on it which he had advanced to Mr. Spivey in entering the land on which Mr. Spivey lived. I told him I had $75 legal tender currency which I desired him to accept for Mr. Spivey. Mr.' Ward said my tender was too late, he had sold the land to other parties. He said he did not think it was light to do it then. I told him Mr. Spivey wanted him to make a deed of the land to him, and he said he could not do so at that time, because he had sold it to other parties. Early in the morning on the 14th of June, 1880, in company with Mr. Spivey, I went to the defendant, Morrisette, and told him, as Spivey’s attorney, not to pay anything to Ward oh the land he and Dozier were proposing to buy, or had bought from Ward, as the land was Mr. Spivey’s. We then went to Mr. Dozier, and I notified him not to pay any money on the land, as the place belonged to Spivey. It was very early in the morning that we saw Morrisette and Dozier, the sun was less than an hour high. About an hour and a half after we saw them, and so notified them, I saw Mrs. Ward and Dan Curry go to Mr. Dozier’s stable and get some harness and a buggy, with one horse to the buggy, and go out of town. The tender of the money to Mr. Ward was not coupled with any condition but unconditional.</p> <p>J. S. Dyches testified : I was in Leesburg early Monday morning following the sale, and saw Mr. Mabry and Spivey go to the Mr. Dozier’s gate and call him out. Mrs. Ward and Dan Curry had not arrived in Leesburg at that time. I saw them come in afterward. I saw Mrs. Ward and Dan Curry leaving Dozier’s and going out of town two hours after I saw Mabry and Spivey go to Dozier’s. . Just before that I saw them with ML Morrisette. This was a long time before Mrs. Ward and Curry came into town. I saw Mr. Mabry tender Mr. Ward a lot of money, the amount was S76. As stated by Mr. Mabry, it included enough to pay him for the entry fee of the land with interest from the date of entry and a little over, but that he tendered him the whole of it. Mr. Mabry said : Ward, here is your money for that land, now make a title of that land to Mr. Spivey. I am not certain as to the precise words of Mr. Mabry. Mr. Mabry in making the tender did not request, demand or exact a deed from Mr. Ward to Mr. Spivey or any one else to the land, as a condition precedent upon the payment to Ward of the money. Mr. Mabry said : Here is your money, now make Mr. Spivey a title to the land. Mr. Ward objected, saying he had sold it.</p> <p>This is the substance of all the testimony. The court • decreed that upon the payment or tender of payment by complainant, or any one by his authority, of the sum of forty dollars with interest thereon from the third day of April, 1875, at the rate of eight per cent., to Dozier or Morrisette, that they convey to G. W. Spivey the NW. of NE. -J, Sec. 32, T. 19, R. 24, S. and E., being the land in controversy, with the appurtenances, and further that W. J. Ward, M. W. Dozier and J. B. Morrisette be enjoined from interfering with or intermeddling with G. W. Spivey in the peaceful occupancy of such premises upon such tender or payment as aforesaid being made, and that the defendants pay the costs of this suit. Erom this decree defendants appealed. It is prayed that the decree be reversed:</p> <p>1. Because the court held that Ward held the land in trust for Spivey.</p> <p>2. In holding that Dozier and Morrisette were not innocent purchasers without notice.</p> <p>3. In holding that they were in no better position than Ward, and that they were not entitled to hold the land upon payment or tender of the money mentioned.</p> <p>4. In decreeing that they should convey to Spivey upon such tender or payment.</p> <p>5. In decreeing an injunction.</p>

John T. McKeown and C. C. Keáthley, the appellants, filed their bill for an injunction against Ooogler (as plaintiff in a judgment against Lowrey and St. Clair) and Mickler, sheriff’, holding an execution issued under said judgment, to restrain the levy and sale of certain tobacco of Lowrey and St. Clair.

<p>Appeal from tbe Circuit Court for Orange county.</p> <p>Tbe facts of the case are stated in tbe opinion.</p>

<p>1. A motion for a new trial will not be entertained at a term subsequent to the one at which a cause was tried and a verdict rendered. In order to obtain a new trial on such motion the statute must be complied with. McClellan’s Digest, 453.</p> <p>2. An affidavit made by the complainant in a case of bastardy, alleging that she is a single woman, has been delivered oí a child, which by law is held a bastard, and that the person charged is the father, is sufficient under the statute to authorize the issuing of the process provided thereby. It is not necessary to allege that she was a single, woman prior to such delivery ; that is a matter for proof upon the trial.</p> <p>8. It is not necessary to arraign the defendant on the trial. He answers to the complaint in the Circuit Court, and from thence the proceeding's are conducted as in civil actions. Prosecutions under this statute partake partly of a criminal and partly of a civil character. In getting’ into the Circuit Court it partakes in form of the criminal, when there it is a civil action. It was not designed to punish the accused for crime, hut to make him contribute to the support of the child.</p>

<p>Writ of Error to the Circuit Court for Leon county.</p> <p>Section 15 of Chapter 1628, McClellan’s Digest, page 628, is as follows:</p> <p>“If for any cause the whole number of any grand or petit jury should fail to be summoned, the Judge of the court may direct the clerk to draw grand and petit jurors, and issue a venire to the sheriff or other officer directing him forthwith to summon a sufficient number for such grand and petit juries.”</p> <p>The other facts of the case are stated in the opinion.</p>

<p>1. An indictment for perjury should charge that the oath taken by the defendant was wilfully false, and to matter material to the issue. As to the degree of materiality, it is enough if it is circumstantially material, though not by itself sufficient to establish the issue.</p> <p>3. The form of the sentence of a prisoner convicted of a crime, the punishment, for which is imprisonment in the State Prison for any term,.should be “that he be imprisoned by confinement at hard labor,” unless the court shall otherwise order as provided by law. McClellan’s Digest, 451.</p>

<p>1. An indictment for perjury should charge that the oath taken by the. defendant was wilfully false, and to matter material to the issue. As to' the degree of materiality, it is enough if it is circumstantially material, though not by itself sufficient to establish the issue.</p> <p>2. The form of the sentence of a prisoner convicted of a crime, the punishment for which is imprisonment in the State Prison for any term, should be “that he be imprisoned by confinement at hard labor,” unless the court shall otherwise order as provided by low. McClellan’s Digest, 451.</p>

<p>1. All indictments upon statutes must state the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it, and a conclusion “contrary to the form of the statute,” &c., will not aid a defect in this respect.</p> <p>Where an indictment, found under a statute, omi1¡s a material allegation of that which, by such act, constitutes the gist of the offence, and which makes it punishable by imprisonment, it is bad, and the judgment thereupon will be arrested.</p>

<p>"Writ of Error to tbe Circuit Court for Hamilton county.</p> <p>The Plaintiffs in Error were indicted for the murder of Prank P. Paterson, the former as principal in the first degree and the latter as principal in the second degree. The indictment was found in Madison county, at the Spring-term of the Circuit Court for the year 1881. The case was removed on application of the Plaintiffs in Error to Hamilton county, where they were convicted of murder in the first degree at a special term of the Circuit Court held in June.</p> <p>The second assignment is the overruling of motion of the defendants for leave to withdraw the plea of not guilty and to file a plea in abatement.</p> <p>The record shows that the plea of “ not guilty ” was made on the arraignment in Madison county April 19,1881, at the term convened April 11th. The petition was filed at special Hamilton term {June 18th), and on the same day the State moved to strike such petition from the files. The. petition, which is under oath, is in substance that defendants were poor and could not employ counsel to defend them until a very few days before the court convened in Madison, and consequently counsel did not have time to inform and prepare themselves for the defence before defendants were required to plead to the indictment; that they plead the day following the presentation of the indictment ; defendants are colored men of the African race, and formerly slaves, and were set free by results of the war; the County Commissioners of Madison county, who selected the jury list of 300 for the year 1881, “ were white men, who were formerly slave-holders, and were by education and society taught to regard the African race as an inferior race and not entitled to equal rights and privileges with white men;” that there are 800 colored registered voters in Madison county of approved integrity, fair character and sound judgment and intelligence, and in all respects qualified to serve as jurors ; that colored voters exceed white voters by 500, still only 38 colored voters were chosen on the list of 300 ; colored persons should exceed half the 300 ; that this unjust exclusion of them was on account of their color and former condition of servitude; the grand jury which indicted defendants was drawn from such list, and defendants have been practically denied the equal civil rights and privileges of citizens of the United States, guaranteed to them by the United States and State Constitutions, to prevent discriminations against any citizen on account of race, color or previous condition of servitude. The prayer is for leave to withdraw the plea of not guilty and plead the above allegations in abatement.</p> <p>The State moved to strike out the petition on the grounds that—</p> <p>1st. The defendants had waived all matters in abatement by failing to bring them to the attention of the court at an earlier stage.</p> <p>2d. The right to so withdraw was adjudicated at last term of the court.</p> <p>3d. The petition is false in every material particular, and unnecessarily encumbers the record.</p> <p>This motion to strike was supported by an affidavit of Frank W. Pope to the effect that from his personal acquaintance with the County Commissioners who selected the list of 300, dated from a long period of time, and with some for a number of years, he can unequivocally and unhesitatingly deny the allegation made that they failed to include more than 38 colored men on account of their color; that there was at least one colored man on the grand jury. Affiant believes County Commissioners had no disposition or intention to discriminate against defendants, or other colored men, in selecting the 300, but that they acted uprightly and honestly in such matter. Two of the Commissioners were not slave-holders.</p> <p>The court overruled the motion to strike, and denied the motion of the defendants.</p> <p>The sixth assignment is that there was error in not granting defendants’ motion to quash the regular venire for the petit jury.</p> <p>The grounds of this motion are—</p> <p>1st. The venire was not drawn according to law.'</p> <p>2d. The County Commissioners in selecting the list of 300 discriminated against colored men on account of their race, color and previous condition of servitude, and it had been the custom to so discriminate for the past four jmars.</p> <p>The motion was supported by- affidavit of defendants, to the effect that there are at least 200 colored mén in Hamilton county who are persons of approved integrity,-fair character and sound judgment and intelligence, and in all respects qualified to serve as jurors; that out of sayd 200 colored men all have been wilfully excluded, as affiants are informed and believe, from the list of 300, except six ; that the whole voting population, as affiants are informed and believe, is about 1,300, and that the discrimination in refusing to place a larger proportion of colored meu on said list was on account of their race, color and previous condition of servitude, and it has been the custom in this county for the past four years to thus discriminate; and further, there are about 350 colored registered voters in such county ; and this affidavit is made on reliable information.</p> <p>In further support of said motion, defendants read the record of the drawing of the venire. It shows that on May 18, 1881, at 11 o’clock, due notice having been given according to law, and proclamation having been made by the Sheriff, and the County Judge, Clerk and Sheriff being present, the names of eighteen good and lawful men were drawn by the Sheriff, County Judge and Clerk, &e., and a venire facias issued by the Clerk.</p> <p>In opposition to the motion, the State Attorney filed an affidavit denying that any discrimination was made by the Commissioners, or that they were actuated by any motives or feelings of prejudice against defendants, or other persons, on account of race, color or previous condition, but they acted fairly, impartially and without prejudice or discrimination in the matter, and denies that colored persons were excluded from the list on account of race, &c. ; and says there are two colored men on the special venire ; and denies the four-year allegation, and that as to the venire not being drawn according to law. The State also offered a certificate from the Clerk of the Circuit Court, o the effect that the record of the drawing was erroneous, and that he drew the venire himself in the presence of the other officers mentioned.</p> <p>The defendants objected to the filing of the certificate, and the objection was overruled, but afterwards, the defendants having moved to strike out the traverse of the State Attorney on the ground that it was not sufficient or responsive to defendants’ affidavit’, the court sustained the motion in so far as the affidavit or traverse is to be considered as evidence in reply to the affidavit of defendants, but refused to strike it from the files, for the reason that it is urged by the State to show that the facts stated by the affidavit of accused are not admitted, but denied.</p> <p>The court refused to quash the venire.</p> <p>The thirteenth, fifteenth and sixteenth errors assigned are the refusal of the court to permit the counsel for the accused to ask E. C. Jones, Knight, McCullens and Lee, called as jurors, the questions stated in the seventh and ninth subdivisions of the opinion.</p> <p>Of these three jurors, however, Knight alone was selected and served. How. the others were disposed of, whether by peremptory challenge of defendants or State, or how, the record does uot disclose:</p> <p>The court refused to permit the defendants to ask one Lee, who was called as a juror: “Is there such a bias on your mind that you would require evidence to remove it before you could render a verdict contrary to .your present opinion ?” It was objected to, and the objection sustained, because he had already been asked if he was “ sensible of any bias, prejudice or ill-will against the accused,” and had answered in the negative, and besides, the question assumed that he had bias when he had disclaimed having any. Lee was not taken on the jury. The record does not disclose why he was not.</p> <p>The testimony as to dying declarations discussed in the eleventh sub-divisiou of the-issue is as follows:</p> <p>C. T. Coyle testified on behalf of the State as follows: I live in Madison county, Florida, at Greenville. On February 8, 1881, I was at Madisonville, Fla.; reached that place about 11 o’clock A. M. I knew Paterson; saw him on that day in Judge Witherspoon’s office, and had a conversation with him. He was in a dying condition. I know he was because blood was coming out of his mouth ; he was lying on a bed, and said he was shot. I asked him if he was hurt, he said he was killed, he was dying! He died in about half an hour I suppose after making this declaration. He was not able to stand up. He could not speak a sentence, the blood choking him; he had to stop to swallow. I asked him who shot him. He told me. His declaration was not reduced to writing. He said Savage shot him twice and James once. He raised his left hand and said James shot him in that, (showing the finger next to the forefinger) and that Savage shot him in the body, putting his hand on the place. Did not notice the size of Paterson’s finger. Noticed the wound in the finger. Noticed it as I had his hand in mine that it -was a small ball made it. I know Savage and James (points them out). Paterson stated other facts and circumstances concerning the killing that happened at the killing. I asked Paterson if he shot either of the parties, Savage or James, and he said he did not. I asked Mr. Paterson if he had a fight with Savage and James, (counsel for the accused object to giving Paterson’s answer, on the ground that it is not a part of the res gestee, overruled and excepted to by accused,) he said no, that Savage grabbed him and shot him. The conversation stopped.</p> <p>Cross-examined:</p> <p>No one was present but me and Paterson at that time (the dying declarations). I have stated as near as T can recollect every word that was said. He (P.) could not talk continuously. His (P.’s) mind was clear. He only answered the questions when I asked him. Paterson did not say that he made any remark to Savage. Paterson was suffering a very great deal at that time. He said he was suffering terrible pain and agony. Personally I have no feeling against the accused,</p> <p>Caraway Smith, a witness called for the State, testified as follows : I knew Paterson in his life-time. I know Savage and J ames. Paterson is now dead. He died 8th .February the present year; saw him a short time, about an hour before he died. He was in a' dying condition. Saw P. when he was coming out of the court-room after he was wounded, and when he was lying in Judge Witherspoon’s room. I conversed with him in meeting him at the courtroom door. I asked him if he was hurt, he replied, “ yes, my God, I am shot to death.” I,said no, you are not hurt much. He said, “ yes,” placing his hands to his breast, ” my God, I am shot to death.” After he was on the bed in Judge Witherspoon’s room he repeated the same words, adding, “ I have been robbed of my life.” lie said Savage and James shot him. Do not remember that he gave their given names. The coat-sleeve of Paterson was on fire when I met him at the court-room door. I examined coat-sleeve and found bullet-hole, at least what I supposed was a bullet-hole. The hole was as large as my thumb, and was burning.</p> <p>Cross-examined:</p> <p>It was not over two minutes after the shooting when ‘Paterson made the declaration that Savage and James shot him. No one was present but mySelf. Paterson and I were alone, not longer than the.time occupied by the conversation which happened between us. No other one heard the declaration as I remember. The declaration I mean was the one that P. made to me,' of which I testified, to-wit: that Savage and James shot him. C.' W. Stevens was with P. at the court-room door when I met him. Mr. Stevens was walking at P.’s side, if I remember correctly, and I think he (Stevens) had hold of his arm.</p> <p>J oel E. Philips, a witness for the State, being sworn tes:tified as follows: I knew Paterson in his life-time. He is dead. I had a conversation with P. about a half an hour before his death. He was on the bed in the back part of the office. I asked him where he was shot. He placed his hand on the wound, and said he was robbed of his life by Savage and James, and had nothing to defend himself with. I had hold of his hand at the time. He said goodbye, I am dying, and asked me to get him a doctor. Had no further conversation.</p> <p>The twenty-first error assigned is the court’s overruling the objection to the following questions, put to State witness, O. F. Florid, by the State Attorney, and to'his answers : “ When you went up towards where Savage, Paterson and James were having the difficulty, did James do any other act with his pistol other than you have stated ?” He answered “ yes.” “What was it?” Answer: “James drew his pistol on me, and snapped it at me when I went up.” Mr. Florid’s testimony shows that the “ snapping ” at him took place at the time of the other shooting ; he says it was between the second and third shots.</p> <p>The twenty-second error assigned is as follows : A State witness, Brinson, had stated that on the 7th of February, 1881, (the day before the killing) he saw Savage and James get off the train, and that his attention was attracted by their having certain kind of guns, the like of which was exhibited in court. The State Attorney asked: “ Did you ever see any other colored man about Madison with such guns as this ?” The accused objected to the question, and it was overruled. “ I never did,” was the answer. No objection had been taken to the testimony as to seeing the prisoners with the guns, &c.</p> <p>The twenty-third assignment is that the court erred in sustaining objections of the State to three separate questions asked by the accused of the witness, S. M. Hankins, called in their behalf. The first question was, “ whether or not, on account of their extreme political views and utterances, any prejudice or ill-feeling grew up against the accused among their political opponents ?” And the second was, “ whether or not, on account of any conduct or action of defendants, subsequent to the last general election, any ill feeling grew up among certain of their political opponents, and whether or not threats against them were freely indulged in by such opponents on account of such conduct ?” And the third was, “ whether or not the defendants, or either of them, preferred charges or were instrumental in procuring indictments in the District Court of the United States, Northern District of Florida, against any person in Madison county for alleged violation of election laws at the last general election, and 'whether or not, on account of such indictments, any ill feeling was entertained by citizens of Madison county, and particularly by-the deceased, Frank P. Paterson, against the defendants, and whether or not threats were made against them by such citizens, and particularly by Paterson ?” The first two questions were overruled. As to the other, the court overruled it as a whole, but held that that part of it in regard to the conduct of Paterson to be unobjectionable as a separate question.</p> <p>The other facts are stated in the opinion.</p>

<p>1. An indictment found under Section 12, sub-Chapter 4, Chapter 1637, Laws 1868, charging that the accused, in the night time, broke and entered, &c., with intent to steal property of the value of six dollars, is had, in that the breaking and entering was with intent of committing a misdemeanor and not a felony.</p> <p>2. Such indictment to be good should charge not only that the intent was to commit a felony, hut that the breaking and entry was into a “building, ship or vessel.” A corn crib is not necessarily either a “building, ship or vessel.”</p>

<p>1. Fractions of days are not regarded in law, except when justice requires a careful examination as to the precise time of day at which an act was performed, in order to do right as between parties.</p> <p>2. Where time is to be computed from a particular day, or when an act is to be performed within a specified period, as from or after a day named, the rule is to exclude the first day designated, and to include the last day of the specified period.</p> <p>3. An indictment found on the thirteenth day of December, 1880, for ' an offence alleged to have been committed on the thirteenth day of December, 1878, is good, the offence not being barred by the statute of limitations.</p> <p>■4. It is not necessary that the court should charge the jury in the precise language adoi>ted by the counsel for the defendant in his request, but it is sufficient if it charge the propositions of law so submitted in equivalent language of its own adoption.</p>