Volume 19 — Florida Reports

This is a case of original jurisdiction in the Supreme Court. The facts of the case are sufficiently stated in the opinion.

The Appeal mentioned in the opinion was from a judgment of a Justice of the Peace in.Duval county to the Circuit Court for the same county. The mandamus proceedings were instituted in the Supreme Court. The other facts are stated in the opinion.

The order of the Supreme Court upon the suggestion being filed was as follows: On reading and filing the suggestion, by petition, of Du-val Selph, duly verified, averring that in a certain cause pending in the Circuit Court iu and for the county of Columbia, in the Third Judicial Circuit of our State, wherein Duval Selph is plaintiff and W. M. Ives, Sr., is defendant, the same being an action of replevin commenced in a court of a Justice of the Peace of said county, wherein…

<p>This is a case of original jurisdiction in the Supreme Court.</p> <p>The facts are sufficiently stated in the opinion.</p>

This was an action of trover, brought by appellee against appellant for the conversion of a quantity of logs. Defendant pleaded not guilty, and further that the plaintiff was not the owner of the logs nor entitled to the possession. The cause was tried in April, 1882.

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

<p>Appeal from the Circuit Court for Jefferson county, the case having been transferred, from Madison county.</p> <p>The facts of-the case are stated in the opinion.</p>

<p>1. A plaintiff in ejectment cannot recover as against one having possession without title by proving title in a third person.</p> <p>2. Right to possession is an incident to legal title, and is good against a naked possession unaccompanied by claim of title.</p> <p>8. A defendant in possession will defeat a recovery by plaintiff by showing title in another person.</p> <p>4. Where the courses and distances in a deed do not cover the quantity of land called for, and are therefore uncertain as boundaries, and there are other boundaries given in the deed by adjoining tracts, which are ascertained and sufficiently established, the lines will be extended to them where such a course is consistent with the manifest intention of the parties.</p> <p>5. If, as to an ancient deed coming from the possession of the heirs of the grantee, it appears that the names of one or more of the grantors, who could not write, is in the hand-writing of a person then present, and not a party to the deed or in interest, in the absence of evidence of fraud, the presumption is that the signatures were made in the presence of the parties by virtue of an oral direction from them, in which event the signatures are those of the parties as principals.</p> <p>6. Proof of the hand-writing of witnesses to an ancient deed, they being dead, the deed coming from the heirs of the grantee, and having been spread upon the county records in regular order and in due form, is sufficient proof of execution and delivery.</p> <p>7. Under our statute the attestation of a deed in the words “bargained, sold, transferred and acknowledged in presence of us,” where the testificandum clause .is “in witness whereof the said parties of the first part have hereunto set their hands and seals, the day and year first above written,” other facts showing delivery being-established, is sufficient.</p>

This is a proceeding by the appellee under the statute to recover possession of real estate claimed by him to be unlawfully detained or withheld by the appellant. The other facts are sufficiently stated in the opinion.

<p>Writ of Error to the Circuit Court for Duval county.</p> <p>The Chief-Justice being disqualified did not sit in this case. Judge Walker of the Second Circuit was called in in his place.</p> <p>The facts are stated in the opinions.</p>

Writ of Error to the Circuit Court for Duval county. The declaration of the Defendant in Error in this case alleges that the defendant, the City of Jacksonville, before and on the 31st day of March, A. D. 1881, was possessed of and had control of a public bridge over Hogans’ Creek, on a certain public street called Washington Street, in the said city, in the county aforesaid, and ought to have kept the same in good and safe repair and condition ; yet the defendant, not.…

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

The case was decided below by Mr. Aristides Doggett, an attorney-at-law, as Referee, and is an action brought under the Code of Procedure. The facts are sufficiently stated in the opinion.

<p>Writ, of Error to tlie Circuit Court for Putnam county, to which the case was transferred from Clay county.</p> <p>The facts of the case are stated in the opinion.</p>

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

<p>1. An executor in taking the office accepts not only all the trusts imposed by the will under which he acts, but also all the trusts in respect to the assets with which his immediate testator was charged. And an executor of a guardian is liable to a ward to account and pay over to him money due to the ward on arriving at majority which was in the hands of the guardian.</p> <p>2. Such money due to the ward is not general assets of the deceased guardian for the payment of debts and for distribution.</p> <p>3. An executor of a guardian in possession of the estate is, like the guardian, a trustee of funds of the ward which was in the custody of the guardian at the time of his death, and in a suit in behalf of the ward against the executor to recover the funds so held in trust, neither the statute of limitations nor the statute of non-claim can be pleaded in bar.</p> <p>4. A demurrer by a defendant to a bad replication to his plea does not entitle the defendant to judgment if the plea is bad.</p>

<p>1. Chapter 3130, Laws of 1879, (McClellan’s Digest, page 713,) providing that a married woman may by petition and proofs become a free dealer, &c., as if unmarried under a decree and license granted by the Circuit Judge in equity, does not attempt to confer legislative power upon the Judge, and is not unconstitutional upon the ground that the action of the Judge is not judicial in its character.</p> <p>2. A married woman, so licensed, may purchase goods for cash or on credit, and engage in trade as though she was not married, and the fact that her lnisband has signed a note with her and joined in a mortgage to secui'e it, the note being given for money bor- • rowed by her, aud for her separate irse, and no part of it having been paid by him, gives him no interest in the money, or in goods purchased by her with it for the purpose of trading on her own account, and his creditors cannot subject it to the satisfaction of his debts.</p> <p>3. A married woman, so licensed, may employ her husband as a clerk or assistant in the business carried on by her as a trader, he having no other interest in the concern, without subjecting her goods to the payment of his debts beyond the value of his services over and above the expenses of supporting him and his family.</p> <p>4 The purpose of the act was to enable a married woman, so licensed, to engage in trade and accumulate property in her own right and not liable to be subjected to the payment of the debts of an insolvent husband.</p>

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

The following statement of the case was prepared by Mr. Justice Westcott: James H. Moreno, through his bill in chancery against Daniel F. Sullivan filed on the 8th day of March, A. D. 1882, alleges that “ Francisco Moreno for more than thirty years has owned and possessed the parcels of land lying on the bay of Pensacola, between Barracks street and Adams street in the city of Pensacola, the said Moreno having been for all that time in quiet possession and enjoyment of all…

The bill of complaint was filed March 25th, 1882, and is in substance as follows : 1st. The Louisville and Nashville Railroad Company, a corporation created and existing under the laws of the State of Kentucky and doing business in the State of Florida, brings this, its bill, against Manuel Palmes, Collector of Revenue in and for said county, and says that the respondent has levied upon and offered for sale on the 8d day of April, 1882, the following property, to-wit: 2…

The respondents (May 11,1868,) filed their bill against appellant, alleging that on May 4,1866, the appellant and her then husband, now deceased, borrowed of Mrs. Hamilton $1,000 in gold coin, for which they (Staley and wife) promised to pay Mrs. Hamilton on December 30th then next $1,200 in legal tender of the United States, with interest . at 8 per cent, from May 4,1866 ; Mrs. Staley paid $178.23 on August 28,1867.

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

<p>1. At tbe common law neither husband nor wife could be witnesses for or against each other, and this exclusion was not solely on the ground of pecuniary or property interest, but upon grounds of public policy for the protection of the marriage relation. The statutes of this State have not removed this ineompetency, and in a proceeding for a divorce neither the husband nor wife is a competent witness.</p> <p>2. “Habitual intemperance” as a ground for divorce under the statute is a persistent habit of becoming intoxicated from the use of strong drinks. The offence is the habit, and frequent recurring drunkenness from such use proves it.</p> <p>3. When the bonds of matrimony are dissolved the parties should be placed by the decree of the court as near as may be in the situation they occupied before marriage. In respect to the separate property of the wife, his estate therein is extinguished by the divorce, and a decree may be made that such property in the possession of the husband, by virtue of the marital relation, be surrendered to her.</p> <p>4. Upon granting a decree of divorce a clause directing that the rents, hire, issues-, proceeds or profits of the real property of the wife which was in the care and management of the husband, by virtue of the marriage, and which rents, &c., accrued during the coverture, cannot be sustained, the statute providing that she cannot recover them from him.</p> <p>5. In granting a decree of divorce the Court of Chancery exercises a discretion in awarding the custody of minor children, having a regard to the condition and fitness of the parents and the interests of the children, the power being reserved to alter or modify the decree in this respect.</p> <p>6. When a final decree of divorce is sustained upon appeal, an interlocutory order made on filing the bill, restraining the defendant from interfering with or molesting the complainant and his family during the pendency of the suit, and in nowise affecting the decree, which order is alleged to be irregular, will not be reviewed. If such order was irregularly made the final decree will not be reversed for that reason.</p> <p>7. Under the statutes regulating appeals in causes an appeal “ taken within the time fixed by law in other cases,” and giving bond to pay the debt, damages or condemnation and costs, approved by the Judge or Clerk, does not operate as a supersedeas except to a decree where the amount of the “debt, damages or condemnation” is mentioned in the decree. In other cases the supersedeas must be allowed by the Judge of the Circuit Court or a Justice of the Appellate Court.</p> <p>8. A husband cannot be compelled to account to the wife, in any suit, for the rents and profits of her separate statutory property received by him during coverture.</p>

The suit was begun in Liberty county. The following statement of the case was prepared by Mr. Justice Westcott: This suit was instituted in chancery by the appellant’s testator, who sought to enjoin sales of the land which is the subject of this controversy under executions issued upon judgments obtained on the 19th of April, 1869,-hy John T. Seegar for the use of C. H. DuPont and Ivey H. Gregory in the aggregate sum of three thousand one hundred and twenty-four twenty-nine…

Asa May and Geo. W. Taylor executed the guardian’s hond as sureties. Alvin May, the principal and guardian, and Asa May died defore the commencement of this suit, which is instituted by Eva Lee May, an infant, by her next friend, William Bellinger, against the appellants as executrix and executors of Asa May, and James M. Kilpatrick as executor of Alvin May and against George W. Taylor.

Appellees moved to dismiss the appeal on the ground that this court has no jurisdiction to entertain the same. 'The facts of the case are as follows: William Hurter & Co. filed their bill against the Michigan Lumber Company to foreclose a mortgage, which, with the notes it was given to secure, they held by transfer from Paran Moody, the original mortgagee.

Judge Walker, ol the Second Circuit, sat in the place of the Chief-Justice, who was disqualified by being a party complainant. At the June Term, 1881, the appellants, on the 15th day of the term, move to docket the case. The facts of the case are stated in the opinion.

<p>V The statute requiring tlie next friend of an infant to give bond upon tlie institution of a suit relates exclusively to proceedings at common law. So much of the case of Sanderson’s Administrator vs. Sanderson, 17 Fla.,. 829, holding otherwise, overruled.</p> <p>2. In a suit in chancery by an infant through his next friend, the Chancellor has the power to adopt such measures as are necessary to fully protect the interest of the infant, and should exercise it when necessary.</p> <p>8. A contract of life insurance describes the beneficiary thereunder as “for the benefit of tlie estate of tlie insured Held, That the beneficial interest under this contract, enured at the time of its execution and delivery to persons other than tlie assured, and that no interest passed to his assignee upon the party subsequently becoming a voluntary bankrupt.</p> <p>4. A contract of life insurance of a foreign corporation, if executed and delivered in this State, must he construed toy the laws of this State, and under tlie statute of this State, (Chap. 1864, Laws, McO.’s Dig., 584,) wherever the contract does not describe a person or persons, class or classes, in such terms as to show affirmatively that the beneficiaries are not the children, husband or wife of the assured, it enures to her or their benefit.</p> <p>5. Where the description of the beneficiaries in a contract of life insurance is ambiguous, or if the terms used are applicable to several persons, or if the description is imperfect, extrinsic evidence may he resorted to to ascertain the meaning of the contract: Held, Under tlie circumstances in this case that the terms “for the benefit of the estate of the insured,” referred to and meant for the benefit of an only minor child less than five years of age at the date of the contract, and not to the administrator or distributee of the estate, and that the property and the right to collect the proceeds of the policy enured to the child and not to the administrator of the assured.</p> <p>6. The sureties upon the bond of an administrator who has collected moneys, neither assets of the estate, nor subject to distribution by him, and to which as the legal representative of the decedent lie was not entitled, are not liable for any appropriation or use of tlie same by the administrator for his personal benefit.</p> <p>7. A court of equity has jurisdiction to call a guardian to an account at the suit of the ward, also to restrain any improper disposition of the fund, by its process to preserve it and in proper cases to remove the guardian. Such suit need not be instituted in the name of the Governor of the State.</p> <p>8. To a suit against a guardian for an account, the sureties upon his bond are proper but not necessary parties. As they are interested in the taking of the account, they ought to be made parties, but the rule is not imperative that they must he.</p>

The former case before this court referred to in the opinion is to be found in 18 Fla. Repts., 761. The facts of the case are stated in the opinion.

<p>1. Under the Constitution of this State the right of a wife as to the homestead is confined to a power to prevent alienation by her husband, the head of the family, without her consent made jointly with him. But the Constitution does not, however, repeal the statute allowing dower in the estate of the husband, and this right exists as to the homestead.</p> <p>2. The exemption is from the debts of the head of the family, the owner of the homestead. It accrues to the heirs of the party having taken or enjoyed the benefit of it. Where such owner dies, leaving surviving him a widow and children, the right of the widow, if the estate is an intestate estate, is restricted to dower, and the benefit of the exemption as to the remainder of the estate in the homestead, after ^allowing dower, enures to the benefit of the children.</p> <p>3. If the estate is a testate estate, and the devise to the widow is inconsistent with dower, then the widow is put to her election between the will and dower, and if she does not elect dower within one year after the probate of the will she is confined to the will, in which event the benefit of exemption as to the entire homestead enures to the children, as the homestead is not the subject of a testamentary disposition by the head of the family.</p> <p>4. Where, in case of the wife surviving the husband, he dying testate, leaving her executrix with power of sale under the will, she executes a mortgage of the homestead under an order of court, the children surviving not being parties to such proceeding are not bound by it.</p> <p>5. To all proceedings affecting the homestead upon the death of the head of the family his heirs are necessary parties.</p>

The bill of complaint treats The Florida Southern Railway Company (the defendant) as the successor of The Gainesville, Ocala and Charlotte Harbor Railroad Company, praying process against “ the defendant, The Florida Southern Railway Company, formerly The Gainesville, Ocala and Charlotte Harbor Railroad Company.” The Gainesville, Ocala and Charlotte Harbor Railroad Company was incorporated under the “ act to provide a general law for the incorporation of railroads and…

Mary E. Spillman, Margaret C. Gay and twenty-four others bring their bill against Thomas Shalley, Sheriff of the county of Putnam, State of Elorida, George R. Fairbanks, of the city of Eernandina, county of Nassau, State of Elorida, and James M. Baker, as trustee, and say that they are the owners and in full possession of the property known as “ Saratoga,” situated in the county of Putnam, State of Elorida, more particularly described in advertisement of Thomas Shalley set…

This is a proceeding by mandamus upon the relation of Thomas C. Lanier and others against the County Commissioners of Sumter county to compel them to replace and reestablish the public records and public county offices of the county at the town of Leesburg as the county site of the county, from which they have been removed to Sumterville as the county site.

<p>Appeal from the Circuit Court for Hernando county.</p> <p>Ho objection to the equitable jurisdiction- was made by appellees in the Supreme Court.</p> <p>The other facts of the case are sufficiently stated in the opinion.</p>

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

Writ of Error to the Circuit Court for Eranklin county. Motion to dismiss writ of error. The facts of the case are stated in the opinion.

<p>1. In the trial on an indictment for perjury to secure a conviction it is. not sufficient to prove that the defendant, at different times, testified to two opposite things irreconcilable with each other. There-must be testimony outside of his own contradictory statements as to which of such statements is false.</p> <p>2. Courts cannot take cognizance of the ordinances of an incorporated town. They are subjects of proof. In an indictment for perjury, assigned upon testimony given in a Mayor’s Court on the trial for a violation of a municipal ordinance, the indictment should so charge it, and the evidence should prove it.</p>

<p>1. The defendant on trial in a criminal proceeding has a right to be heard in making a statement under oath, of his or her defence, under Chapter 1816, Laws of 1870, at any time before the case is submitted to the jury.</p> <p>2. If a law creating a criminal offence is repealed, such repealing law containing no saving clause preventing the operation of the repeal as to causes then pending, or continuing the repealed law in force as to pending prosecutions, or violations of the then existing law, after the repealing law takes effect no further proceedings can be taken under the law so repealed to enforce the punishment.</p> <p>3. This rule applies to proceedings upon appeal in the appellate court, as well as to the court having original jurisdiction of the offence, and as well when the repeal of the law took effect after the removal of the cause to the appellate court, as before.</p>

Writ of error to the Circuit Court for Volusia county. This case was decided at the January Term, 1882, on its merits as then submitted, and the decision is reported in 18 Fla., 970. Leave was granted at that term to file a petition for rehearing, and it was filed by Mr. John W. Price, attorney for plaintiff in error, within the time allowed after the term. The facts are stated in the opinion.

The alternative writ makes no allegation of a compliance with the requirements of Chapter 3416, Laws of Florida, approved March 3,1883. Sections 1, 2, 3, 5 and 6 of said act are as follows : Sec. 1. That from and after the passage of this act it shall not be lawful for any person or persons, firm or firms, to sell any intoxicating liquors, wines or beer, in any election district in any county in this State, except as hereinafter provided. See. 2.

This is a writ of habeas corpus. The facts are as follows: On the 30th day of June, A. D. 1881, Eliza Fazwell made an affidavit in the usual form before I. N. Shepard,, a Justice of the Peace in and… Held: as he.was neither presented nor indicted by a grand jury. The other facts of the case are stated in the opinion.

<p>Appeal from the Circuit Court for Escambia county.</p> <p>In the month of January, 1882, Hickox brought his action in trover against Anderson, in Escambia county Circuit Court, for the conversion of sixty-nine pieces of pine timber. The defendant was an Inspector of Timber at Eerry Pass, and plaintiff alleged that defendant received said timber from him for inspection, and refused to deliver to him on demand. The defendant’s plea was not guilty. The cause was tried, before a jury on the 26th day of April, 1882, and they found for the defendant. Judgment was thereupon ordered in favor of the defendant. The plaintiff thereupon moved for a new trial, which motion was denied, and he brings his case to this court by appeal. The grounds upon which plaintiff asked a new trial are as follows :</p> <p>1st. The verdict was contrary to the evidence.</p> <p>2d. It was contrary to the law.</p> <p>3d. It was contrary to the charge of the court.</p> <p>The assignment of errors is as follows: “ The appellant assigns as error the refusal of the court below to grant the motion for a new trial.”</p> <p>The other facts are stated in the» opinion.</p>

In December, 1880, the appellant, Isaac Joseph, brought his action against Julius Salomon in the Circuit Court in and for Jackson county, upon a bill of exchange drawn by Salomon at Marianna, Florida, upon J. W. Woolfolk at Columbus, Georgia, payable ten days after date, and dated December 4, 1881, in favor oí the “ Pioneer Stores,” and subsequently endorsed to the plaintiff and appellant.

Post & Hobby are judgment and execution creditors of A. L. and A. W. Smith, partners.

<p>1. In proceedings under the act relating to forcible entry and detainer, upon a complaint for a forcible entry and withholding, the peaceable possession of complainant and the entry by force by the defendant and putting and keejiing complainant out and damages therefor, arc the questions in issue.</p> <p>2. The law forbids a forcible entry whether defendant has title or right of possession or not; in this proceeding there can be no inquiry into the title. If the party entering has a right to the possession and another is in peaceable possession the party having the right must resort to the law to obtain it, unless he can do so without force and in a peaceable, open manner.</p> <p>3. Testimony showing that plaintiff had been in possession of a room for several weeks occupying it as an office with his library and furniture, and that his property was, without his consent, in the ■night time, removed from the room by the defendant’s directions, and plaintiff was by force prevented by defendant’s servant from re-entering, and another person was put by defendant in possession as a tenant, is sufficient to sustain a complaint for forcible entry and unlawful detainer ; and the complaint having been filed within a few days after such ejection and occupancy by the tenant, such facts afford presumptive evidence upon which the jury are authorized to find that the defendant continued to hold x>ossession against plaintiff at the time of filing the complaint, there being nothing to show that defendant or bis tenant ceased to occupy the premises so taken possession of.</p> <p>4. When the plaintiff had peaceably occupied premises for several weeks and is dispossessed by force without process of law by defendant, it is not material, in a proceeding for forcible entry and detainer, whether the plaintiff was originally a trespasser or that defendant may have a legal right to the possession. The gist of the proceeding under the statute is the forcible entry and ousting-plaintiff' from a peaceable possession contrary to law.</p> <p>5. In estimating damages for the wrongful dispossession and withholding of premises under the forcible entry and unlawful detainer act, the jury may take into consideration the rental value of the premises.</p> <p>6. Where there are conflicting statements of witnesses the jury must determine the facts from a fair consideration of the whole testimony.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>Trial and judgment by Mr. E. P. Fleming, attorney at law, as Referee.</p> <p>The facts are stated in the opinion.</p>

Writ of Error to the Circuit Court for Duval county. This is a proceeding under Section 4 of Chapter 151, Laws of Florida, to have the assessment of taxes of the City of Jacksonville for the year 1880 declared illegal. The Circuit Judge dismissed the petition of the plaintiff in error.

<p>1. Instructions given by the court to a jury must be construed in connection with the evidence given on the trial.</p> <p>%. The plaintiff sued the defendant as endorser on a in'omissory note. The defendant claimed that the endorsement was a forgery; that he wrote the words “protest waived” over such endorsement on the day the note matured only for the purpose of saving the trouble and expense of protest. The evidence was conflicting as to the knowledge of the plaintiff of the fact that defendant claimed the signature a forgery at the time those words were written, and that such knowledge only came to him six weeks or more after the maturity of the note, when he brought his action. The court instructed the jury that if the plaintiff was misled to his injury or loss by such act of the defendant in writing the words “protest waived” over what purported to be his signature, and was induced to sleep on his rights, and not to take measures to secure or enforce payment of the note, the defendant was es-topped : Reld, That such charge was not error.</p> <p>3. A waiver of protest upon a note may be made by the endorser not only at the time he endorses the note, but at any time before maturity or on the day of maturity.</p> <p>4. When such waiver of jirotest is made after the execution of the note, or upon the day of maturity, no new consideration is necessary to support it.</p> <p>5. Courts are not called upon to instruct juries upon a hypothesis that does not exist in the case. They may decline to charge upon any point of law not based upon the evidence or warranted by it.</p> <p>6. It is not necessary for a court, even at the request of counsel, to repeat propositions of law which he has already given in his charge to the jury.</p>

<p>1. When the damages laid in the declaration are greater than are claimed in the praecipe and writ, the remedy of the defendant is to move to set aside the declaration for irregularity before pleading in bar. The plea is a waiver.</p> <p>2. If the damages assessed are greater than the amount claimed in the declaration, the plaintiff may remit the excess or amend the declaration in that respect before judgment. Judgment for the excessive amount is erroneous, and will be reversed.</p> <p>3. Costs cannot be recovered against an executor or administrator when the suit is brought within six months after the issuing of letters.</p> <p>4 In a suit against the executor of a will upon a note made by deoedent and endorsed to plaintiff before due, defendant having pleaded a want of consideration, it is shown that plaintiff admitted that the note was given for an invalid consideration, and that he knew it at the time he traded for it, and plaintiff does not expressly deny making these admissions, he cannot recover upon the note without showing a valid consideration as between the maker and the payee, though the plaintiff paid a valuable consideration for the note.</p> <p>5. “Conjuring” a sick man to cure him of his illness is not a valid consideration for a iiromissory note.</p> <p>6. In a suit against an executor upon a note of the decedent, a judgment that “the plaintiff have and recover from the defendant,” is not a proper judgment. The judgment should be that plaintiff recover against the defendant as executor of the last will, &c., of the testator to be made out of the goods, etc., of the estate of the deceased, and that he have execution thereof, and not against the defendant generally.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The appellee, who was plaintiff in the court below, brought suit in assumpsit against George D. Huling, the appellant, and by its amended declaration (the original declaration having been demurred to and the demurrer admitted by the plaintiff) alleged that the defendant, Huling, appointed and constituted the plaintiff his agent for the sale of certain coupon certificates owned by the defendant, and that he authorized, empowered and employed to make sale of such certificates at any price over fifty-five per cent, of their face value, and that plaintiff was to be allowed all sums received by it over fifty-five per cent, of the face value of said certificates as compensation for making such sale; that the plaintiff sold and agreed to deliver to one Philip Walter the said certificates amounting to fifty-five hundred dollars, as expressed by their face value, at sixty-five per cent, of such ..face value ; that defendant, although notified of such sale by the plaintiff and requested to carry out the contract with said Philip Walter, failed and refused to do so, and that the sale was not completed and no money was received by plaintiff, and that plaintiff is entitled to its commissions, and claims one thousand dollars damages.</p> <p>To the said amended declaration the defendant, Huling, filed the following pleas:</p> <p>1st. That he did not promise as alleged.</p> <p>2d. That he did not authorize, empower and employ the plaintiff to enter into contracts with purchasers for the sale of said certificates.</p> <p>3d. That he did not authorize the plaintiff to sell said certificates at any price over fifty per cent, of their face value as alleged.</p> <p>The plaintiff did not reply to or take issue upon or make any other disposition of said pleas, hut went to trial, each party introducing witnesses and other testimony.</p> <p>After the charge of the court the jury retired and brought in a verdict for the plaintiff for. five hundred and fifty dollars.</p> <p>The defendant moved the court in arrest of judgment and for a new trial on the following grounds :</p> <p>1st. Because no replication was filed to .defendant’s pleas.</p> <p>2d. Because plaintiff went to trial without disposing of defendant’s pleas.</p> <p>The third ground was abandoned.</p> <p>4th. Because the plaintiff’s amended declaration is not signed.</p> <p>5th. Because the verdict is contrary to the evidence.</p> <p>6th. Because the verdict of the jury is contrary to the manifest weight of the evidence.</p> <p>7th. Because the verdict is contrary to the charge of the court.</p> <p>8th. Because the court erred in giving the third charge asked by plaintiff, the tendency of said charge being to confuse and mislead the jury, and being otherwise erroneous.</p> <p>9th. Because the court erred in giving the fourth charge asked for by plaintiff’.</p> <p>10th. Because the charges given by the court in said cause were not sealed by the Judge.</p> <p>The motion was denied in toto by the court, and the defendant excepted and appealed from the judgment, and assigned for error—</p> <p>1st. That the court erred in refusing to grant the motion in arrest of judgment.</p> <p>2d. That the court erred in refusing to grant the motion for a new trial.</p> <p>3d. That the record shows that there was no joinder of issue to any of defendant’s pleas, therefore it was error to enter up judgment for plaintiff.</p>

<p>1. Administrators loan funds, assets of the estate they represent. In a suit by them in their representative capacity as administrators to recover the money the defendant cannot set off the value of his services rendered the estate at the request of the administrators. Unless specially authorized by law the administrators can make no new contract binding the estate. The remedy of the party contracting with them is personal against them and the judgment in such a suit is to be satisfied do bonis propriis.</p> <p>2. Where a demurrer to a plea heard in vacation is sustained, and there is no proper application to withdraw the demurrer or to amend or plead further, the proper judgment to be rendered is a final judgment against the defendant. The Judge under the rule and statute should so order, and where the action is upon a contract in which the clerk can assess the damages, a formal final judgment, sustaining the demurrer, and for the damages assessed should be entered upon the hearing upon the demurrer without waiting for a rule day. A judgment entered by the clerk at a subsequent day for default in pleading is unauthorized, as there is no default, the defendant having pleaded and his plea having been pronounced insufficient in law.</p>

Writ of Error to the Circuit Court for Duval County. This is a writ of error to the Circuit Court for Duval county, upon the judgment of Hon. James M. Baker, referee. Plaintiffs in error commenced suit in ejectment against John Broward and Adel E. Broward, his wife, to recover three hundred acres of land in Duval county. John Broward dying pendente lite, his heirs above named were made parties. Defendants pleaded not guilty.

<p>1. Wlien a party at the trial of a cause, and before the jury has retired to consider of their verdict, presents to the Judge written instructions upon points of law which he desires should be given to the jury, and the questions of law are pertinent to the issue and arise out of the evidence given, it is the duty of the Judge to consider the instructions, and to give his ruling thereon in writing to the jury, and the neglect or refusal to consider or give his ruling thereon as required by law, duly excepted to, is error.</p> <p>2. While there is no bill of exceptions bringing up the testimony given on the trial yet, if it appears by the charge of the Judge in the record that certain evidence was before the court, it may appear therefrom that instructions to the jury prayed by a party upon points of law were pertinent to the issue and to the evidence, and that the party was entitled to the ruling of the court upon the questions presented.</p> <p>3. In such case this court will not consider whether the instructions should have been given to the jury as prayed, but only whether the instructions being pertinent, the parts'- has been denied a right secured by the statute.</p>

<p>Appeal from the Circuit Court for Marion county.</p> <p>Trial and judgment by Mr. W. A. Hooker, attorney-at-law, as referee.</p> <p>At the June Term, A. D. 1882, the appellee moved to dismiss the appeal. The facts are stated in the opinion.</p>

The case is thus: The bill is brought by a corporation known as the Pensacola City Company in behalf of itself and those claiming title under it by purchase and conveyance, some of whom are named, against A. V. Caro, “ claiming to be an heir of Gabriel Rivas and agent for other heirs.” Plaintiff alleges that about the year 1806 Gabriel Rivas became possessed in fee of a grant from the Spanish Crown of a tract of land in the vicinity of Pensacola known as the Chabeau tract…

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

<p>Appeal from the Circuit Court for Columbia county.</p> <p>At the June Tern, 1882, the appellee moved to dismiss the appeal.</p> <p>The grounds of the motion are stated in the opinion.</p>

<p>1. An attorney having money collected for a client in his hands, which money is claimed by two creditors of such client, his client disclaiming any interest in favor of himself, the attorney not being so fully cognizant of the facts as to determine the right, may properly bring a bill seeking a decree against the creditors that they interplead and contest their respective claims between themselves.</p> <p>2. The practice upon answer and replication in an interpleading suit properly brought, is to decree the bill to be properly filed, to dismis the complainant with his costs uji to that time upon his placing the fund in the registry of the court, and to direct an action to be brought or an issue or a reference to ascertain and settle the rights of the defendant claimants to the fund as the case may require. In this case there was a reference which was proper.</p> <p>3. A cross bill setting up substantially the same facts as the answer, is inadmissible in an interpleader suit where the defendant can have all the affirmative relief he is entitled to without it under the decree of reference to ascertain his right.</p> <p>4. A debtor places a chose in action in the hands of his attorney, to whom he is indebted, with directions, not in writing, to collect and apply the proceeds, so far as necessary, to the payment of his debt. This is a particular assignment good in equity, and the assignee has an equitable right to enforce the debt at law in the name of the assignor. Such assignment places the chose in action beyond the control of the assignor, and is good against a subsequent assignment by him, or a subsequent attaching creditor.</p> <p>5. In a contest between an administrator and an alleged creditor of his intestate, the creditor is not under the statutes of this State a competent witness in regard to any transaction or communication between him- and the deceased unless such administrator is examined as to such transaction in his own behalf, or testimony of such deceased person as to it is given in evidence.</p> <p>6. Unless the case presented by the record is one in which there is a plain and adequate remedy at law, or some jurisdictional defect, or extreme multifariousness is disclosed, it is the practice of this court where the decree is otherwise proper to disregard objections of a technical character made here for the first time. Hence, a defendant to a bill of interpleader after unsuccessfully contesting the claim of a co-defendant and after decree to interplead between themselves not objected to, will not be permitted to object here for the first time that the bill is brought by such co-defendant in the capacity of surviving partner of a firm against himself and another as administrators of the estate of his deceased partner.</p>

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

This suit was instituted by Spratt and Barnett. They seek to enjoin two ejectment suits brought to recover possession of lot number 8 in block number 31 on the southwest corner-of Pine and Eorsyth streets in the city of Jacksonville, Florida, one of the shits being by Knox, Commissioner, &c., and the other by George Wheaton Deans as administrator d. b. n. of the estate of Foreman, both of the suits being against William B. Barnett, the tenant of plaintiff Spratt.

<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 Marion county.</p> <p>The facts of the case are stated in the opinion.</p>

The case is sufficiently stated in the opinion. The points decided as to parties and practice were not raised by counsel.

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

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

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

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