Volume 20 — Florida Reports

This is an application to the Supreme Court for a mandamus. The facts are as follows: The petitioner states in his petition that he was served in June, 1888, with a rule from the Circuit Court of Escambia county, to show cause why he should not be punished for contempt for disregarding an injunction issued by such court; and after giving the proceedings on such rule states that the Circuit Judge, after hearing the evidence and argument of counsel, adjudged him to be guilty…

<p>There is no provision of the statute authorizing a change of venue in criminal cases upou the ground that the Judge of the Circuit Court is disqualified. Relief may be had by the assignment of -another Judge to hold the court and try the cause.</p>

<p>1. The effect of a consignment of goods generally is to vest the property in tlie consignee, hut if tlie hill of lading is special to deliver tlie goods to the consignee for the use of or on account of a party not tlie consignee the property vests in such party.</p> <p>2. In such case the bill of lading is prima facie evidence of the fairness of the transaction, and is sufficient to raise a presumption of property in tlie person for whose use and account tlie consignment is made.</p> <p>3. Where, however, tlie consignment thus made is by an insolvent debtor and there are facts and circumstances from which tlie jury might infer that tlie transaction was colorable and fraudulent, and that there was nothing due to the party on whose account the shipment was made, a verdict of a jury thus finding, approved by the Circuit Court, should not bo set aside by this court.</p> <p>4. (4eueral statements of an insolvent debtor as to the amount of his indebtedness to one of two contending creditors, both the insolvent debtor and such one of the contending creditors failing to give any itemized account or clear exhibit ol’ the alleged debt, cannot be regarded as conclusively establishing the debt in a ease surrounded with other suspicious circumstances.</p>

<p>1. Where a party sells and delivers to another party at a port of entry in this State a quantity of timber on board a ship, and guarantees the same to be of “the season’s manufacture, and of fair average quality, the measurement to overrun the specifications,’' the measure of damages to be recovered in an action for a broach of the contract is controlled by the difference in the value of the timber in the market where the contract was made, and the timber delivered.</p> <p>2. The refusal of the court to receive evidence in such a case of the difference in such value in the market of Liverpool, where the contract does not provide for such an assessment of damage, and where there is no allegation in the declaration that the damage was there to lie assessed, is not error.</p> <p>0. The contract or agreement of parties in Liverpool lor the purchase and sale of such timber, to receive from their consignor, in Pensacola, a certain sum in full for damages on a breach of such contract to be completed in Liverpool, is not evidence of the value of the timber as guaranteed in Pensacola, and its market value in Pensacola.</p> <p>4. The general rule is, “That damages recoverable will bo calculated at the market value of the goods at the time and place when and where they ought to have been delivered.” “And evidence of the value of such goods in a foreign market cannot be received upon a question of damages, unless it is averred in the declaration that the goods were bought for that market.”</p>

This was an action of ejectment commenced October 24, 1881, in the names of Joseph II. Spooner, Francis M. Spooner, Sarah J. Spooner and Mary E. Spooner, as plaintiff's, against the appellants, Bennett P. and Benjamin TI. Real, in Jackson county. The defendants pleaded as follows : 1. That they are'not guilty. 2.

<p>1. Under tlie plea of not guilty in an action of ejectment, the defendant may prove an adverse possession. Chapter 3244, Laws of 1881, does not change the rule in this respect. It provides only that if the defendant wishes to deny possession of the premises, or wishes to deny that he claims adversely to the plaintiff, or to his title, it must be done by special plea.</p> <p>2. A plea claiming to be a plea “on equitable grounds,” but which sets up no fact upon which the defendant, if judgment was obtained against him, would he entitled to relief against it, may be stricken out on motion, or by sustaining a demurrer.</p> <p>3. A plaintiff in ejectment is bound by the allegations in his declaration, and. can recover possession of no greater quantity of land than he claims. He may, under certain circumstances, recover a lesser' estate, interest or quantity, but never a greater.</p> <p>4. It is not error for the court to refuse to give an instruction to the jury, requested by defendant’s attorney, as to the adverse pos- . session claimed by the defendant, unless there is embodied in such request a submission to the jury as to the fact whether such ad verse possession had continued for the statutory period of seven years.</p> <p>A The appellant is responsible for the correctness of the record sent up to this court, When such record does not furnish the evidence or facts upon which alleged errors are based, this court will conclude that the rulings of the court below were in conformity to the law.</p> <p>6. There is no error in refusing to admit improper and hearsay evi dence ; but there is error in refusing to strike out such evidencewlien the same lias been improperly admitted.</p> <p>7. An adverse possession may, after the lapse of the statutory period. confer a possessory title which is good even as against the former owner. To constitute an adverse possession, it is not necessary that there shouicl be a rightful title in the party setting ui> the defence. The idea of sriglit is excluded by the very fact of the , defence:</p> <p>8. “A claim of title is efficacious as a ground of title by adverse possession ; and neither a deed, nor any equivalent muniment of title is necessary for that purpose,.when there is an actual occupation, with an oral claim of exclusive title, or other circumstances by which the absolute owner is ordinarily distinguished from the naked! possessor.'”</p>

<p>1. The power of the court under the statute to allow amendments applies to the amendment of a petition for the re-establishment of 1 lost papers.</p> <p>3. After a cause is remanded by the Supreme Courtto the Circuit Court for further proceedings, such court lias power to admit amendments to be made to the pleadings and proceedings, unless the Supreme Court otherwise directs.</p> <p>3. When a party has by pleading waived an objection which might have been taken it is too late after action of the court upon such pleading- to withdraw it for the purpose of raising the objection so waived.</p> <p>4. An executor of an executor is tlie executor of the will of the first testator, unless he shall at the time of qualifying renounce and refuse to administer under the will of the first testator.</p> <p>5. After notice to the executor of an executor, of a petition praying the re-establislnnent of a lost writ of fi. fa. upon a judgment against the first executor, the last executor cannot have the petition dismissed on the ground that lie has since the notice renounced administration under the will of the first testator.</p>

Writ of Error to the Circuit (.'curt for Jefferson county, to which the case was transferred from Madison county. The tacts of the case are stated in the opinion.

James M. Baker, Judge of the fourth Circuit, presiding. Moses Endel and Marcus Endel brought their action of ejectment against appellant, to recover a lot in Gainesville, claiming title.

The facts of the ease are stated in the opinion. Appeal from the Circuit Court for Duval county. This case was tried by Mr. Manuel C. Jordan, as referee.

<p>1. The dismissal of a rule to show cause why a writ of prohibition should not be granted is a final judgment upon the suggestion filed and the facts therein contained, from which an appeal lies.</p> <p>2. The power to issue the writ of prohibition as an original x>roceeding does not belong to the Circuit Courts, and can be issued by them only as ancillary to a jurisdiction already acquired.</p>

<p>Appeal from the Circuit Court for Duval county.</p> <p>The case was tried before Mr. T. A. McDouell, as Referee.</p> <p>The facts of the case are stated in the opinion.</p>

The Appellees, who wore plaintiffs below, moved to dismiss the appeal on the following ground: “ The reemvj shows a joint judgment was rendered in the court below against all the defendants therein, and bond given and appeal therefrom prosecuted in the name of only two of the defendants.” There were three defendants.'

This was a proceeding commenced by D. C. Dawkins in the Circuit Court for Jackson county by petition, which was treated by the parties as a complaint under the Code. The original petition appears to have been filed in November, 1869, and was lost, and in November, 1871, a copy was filed under which the subsequent proceedings were had.

<p>1. Parties owing debts and threatened with suit, who are entitled as lieirs at law to real estate of the value of $1,500 from the estate of their father who died possessed also of personal' property worth over $1,000, before judgment recovered against them convey to a relative also an heir the real estate in consideration of her promise to pay the debts owing by their lather amounting to about $200 ; and one of the judgment debtors sues out letters of administration of the estate of the deceased and as such takes possession of the personal property : Held, Upon creditor's bill, that the conveyance of the real estate under the circumstances was fraudulent and void as against the judgment creditor.</p> <p>2. The mere denial in an answer of a fraudulent intent in conveying property beyond the reach of an execution against them, while admitting all the facts which in law and equity constitute a fraud ulent conveyance, is not such a denial as' must he overcome by tlie testim ony of several witnesses or equivalent evidence. Such denial must relate to facts charged and not to the conclusions and arguments flowing from the lacts.</p> <p>3. A decree under a creditor’s bill directing tlie sale of the interest of certain heirs at law in real estate to satisfy a. judgment against them, which real estate the heirs had convoyed for the purpose of hindering and delaying their creditor, does not interrupt the due administration of the estate by an administrator.</p>

<p>Jib lion enures under Chapter 8132, Laws, in favor of a laborer for a sub-contractor against a railroad company where the only privity of contract existing is between the company and the first, contractor.</p>

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

This is a bill filed by O. E. Rims against A. S. ISTims, alleging a partnership in the business of running a sawmill, and selling lumber. The bill prays a dissolution of the partnership, an accounting and a decree for whatever may be due. The answer in terms denies every material allegation in the bill, but shows facts substantiating the existence of the partnership and insists that there were no profits, but losses, and that nothing is due complainant.

Peres B. Brokaw died leaving surviving him his widow, who is the appellant, and three children, Phoebe, Eliza and Abram. Abram died before the commencement of this suit, unmarried, without issue and intestate. The children of Peres were the issue of a former marriage.

<p>1. Tlie 45th Rule of Chancery Practice prescribes the time in which an answer after appearance should be filed by the defendant, and the 51st Rule prescribes the time in which the defendant, after his demurrer to plaintiff’s bill is overruled, shall file his answer. In neither ease is the plaintiff required by these rules or the general rule upon the subject of notice (Rule 3) to take any action to authorize him to enter an order that the bill be taken pro confesso in the event the answer is not filed as required by the rules mentioned.</p> <p>2. After entry of the order that the bill be taken pro confesso, the plaintiff may at once, and without notice, cause the matter of the bill to be decreed at any time, if the same can be done without an answer and is proper to be decreed, that is to say, he can have such decree as the equities disclosed by his bill authorize.</p> <p>3. When the hill is thus taken pro confesso and final decree had, it is, under Rule 45, a decree nisi, subject to be opened upon cause shown upon motion and affidavit and upon terms, and does not become “absolute ” until the expiration of twenty days after the rendition thereof. After the expiration of this time, without any action by the defendant, the decree becomes final and “absolute.” There is no difference arising out of the fact'that under the statute this final decree is entered out of term between it and a decree entered in term ; and the proceeding is in a strict sense a record by which the rights of the parties in controversy are ihnilly adjudicated.</p> <p>4. While it appears that the Circuit Courts of the United States have not power to open such decrees absolute and enrolled, upon motion, and that their power is confined to such proceedings as may be had by bill of review, rehearing or original bill, still under the uniform practice in the State courts such -a power is admitted to exist, aud may be exorcised under certain circumslanco.s, and as a motion is the only moans by which tbc decree may ho opened, and a defence upon the merits let in, although the party may he guilty of no laches, aud his failure to set up his rights in the time required may he occasioned hy causes beyond Ms control, and hy obstacles -insuperable in their character, and he may hate, a good defence, we think the rule of the State courts as to the matter of power is the hotter rule, and we adopt it.</p> <p>0. The power to open such decree, however, is not to be exercised in cases where the decree has been made absolute in the regular course, and the defendant has been guilty of neglect and failure, to give attention to the process of the court. Without the existence of strong and unavoidable circumstances excusing such neglect and laches, the decree should not be opeued. Sueli power should not be exercised upou a mere desire to let in a defence upon the merits. The facts established must show deceit, surprise or irregularity in obtaining the decree, that the defendant has acted bona fide, and with reasonable diligence, and has a meritorious defence, and the facts constituting such defence must distinctly and satisfactorily appear, and the proposed answer should ho exhibited.</p> <p>0. The action of the Chancellor upou a motion of the character mentioned may be reviewed in this court under the law and practice in this State.</p>

<p>1. Upon a bill by creditors against an executor, alleging deficiency in personal assets and insolvency, and praying a discovery of all assets, their sale and the application of the proceeds to the debts, it is erroneous to direct an execution to issue against the executor as for a clec.astmit to the extent of the estimated value of the assets in his hands subject to administration. To the extent that the assets consist of money in his hands, he should be directed to pay the same into the registry of the court; and if a sale of the real and personal property of the estate is necessary to the satisfaction of the debts proved before the master, it should be decreed. An execution against the executor should issue only for the sum with which lie is chargeable on account of losses occasioned by negligence or failure in the discharge of his duty, or like causes. It should issue then only in the event that the money and the proceeds of the sales of the property are not sufficient to satisfy the claims of the creditors. Creditors have such equities whether the estate is solvent or insolvent. It is the ordinary bill by creditors for the marshaling and administration of assets of an estate.</p> <p>2. Where the responses of the answer are as broad as the allegations and interrogatories of the bill, there is replication to the answer, and the general facts to be proved are put in issue by the pleadings, it is sufficient. Proof of a fact not specifically alleged, but embraced substantially in the case made by the answer and the bill, is admissible.</p> <p>3. Two life insurance policies, each for one thousand dollars, are taken out by A payable to. himself. He subsequently places on each policy in writing a direction to pay the money upon one policy to one person and upon the other policy gives a like direction to pay its proceeds to another person. There is no evidence that the insured at the time these contracts or this direction was given was indebted : Held, That under the statute of this State the written direction proved to have been made by the insured, is a written declaration hi the policy of the person for whose use and benefit it is intended, and that under the statute such named persons are entitled to the proceeds of the policies as against creditors of the deceased insured.</p> <p>4. In a life insurance where the premiums paid are reasonable in amount, looking to the condition in life of the assured, and there is no proof of an actual purpose at the time the contract of insurance is entered into to divert the money from anticipated debts, and to defraud creditors, the statute protects the proceeds from the claims of creditors in favor of the beneficiary named in the policy, and upon the death of the assured whether he be solvent or insolvent the amount of such life policy is exempted and protected from the claims of creditors.</p> <p>5. Where plaintiffs allege the existence of a partnership between themselves and a party deceased in a suit against the executor of the will of the deceased party, such plaintiffs are incompetent witnesses under the statute to establish transactions or communications between them and the deceased party by which they claim a partnership resulted, no evidence of such partnership appearing upon the books of the firm.</p> <p>6. Where the conflict in the testimony is clear and the court cannot upon a review of the evidence say that the findings of a master and a referee ai-e wrong, tliey must be sustained. In a case of simple conflict the court cannot direct the finding to be for one party ratlier than the other.</p> <p>7. An executor is entitled to credit for sums paid au attorney for legal advice when the charges are reasonable and proper in amount.</p> <p>8. The executor in possession of the real estate of the deceased, when the rents thereof are necessary to the satisfaction of the debts, is personally accountable to the creditors for the rental value thereof when the circumstances of tlie case disclose a failure to-realize rents and neglect to exercise the diligence and business activity required at his hands in the management of the property.</p> <p>9. The executor collects money of the estate and permits it to remain ■ in bank uninvested. It not being affirmatively shown that no good security could be found on which to put it out at interest, tlie executor failing to pay it into court, is chargeable with it under tlie statute as money retained on interest by him, and it should enter into his annual returns as money so retained, interest being added to the principal annually.</p> <p>10. Where the executor fails to file an inventory of the personal property of the estate, neglects to make his annual returns, and fails generally to discharge his duty, he not only forfeits his commissions but. is also, properly denied any compensation for general services.</p> <p>11. The subject- of an exception to the repoit of a master and the finding of a referee is a particular account which the master has stated from the books. Tlie exception is overruled by the referee, he finding upon comparison of the account with the books from which it is taken that it is correctly stated. This court must, under these circumstances, presume the account to be correctly stated, the books not being- before us.</p> <p>12. It is too late to urge here exceptions to accounts which the referee finds were admitted by the party when before tlie master, the record disclosing that the accounts went before the master without objection.</p>

<p>1. It is too late upon a second appeal, after hearing upon a former appeal and remanding- the case, to object that an original protest of a note and certificate of a Notary are not evidence of the facts which they narrate, no such objection having been made and insisted upon at the time of their introduction in evidence.</p> <p>2. Where the indorser of a promissory note resides in a different place from the point at which it is payable, notice of the default of the maker must be deposited in the post-office in time to be sent by the mail of the day succeeding the day of the -dishonor of the note, provided the mail of that day be not closed at an unreasonably early hour, or before early and convenient business hours, in which case it must be sent by the next mail thereafter. Where the notice is not mailed until the second day after the dishonor of the note, and no circumstance which would extend the time is shown, it is not sufficient to bind the indorser.</p> <p>3. If there has not been any due presentment and notice of dishonor of a note, and the indorser, after the maturity of the note supposing himself liable to pay it, takes security therefor from the maker, that will not alone amount to a waiver of the objection of the want of due presentment and due notice. The presumption there is that he takes the security merely as contingent security in case of his liability, but if the evidence is of such character as to show an admission of unconditional liability, and that evidence consists of such an admission to one who afterwards be came the administrator of the indorser, and other circumstances, the amount of the claim so paid by the administrator should not be charged against him as a devastavit.</p> <p>4. An administrator, under the statute, is a competent witness to declarations and admissions of the deceased intestate as to claims against him.</p> <p>5. One of two partners, as attorneys at law, has a right to share in the sums realized by the other as commissions for sales of stock in a railroad company where such sales are embraced in the ordinary usages and customs of the business of an attorney at law in the locality where it was carried on.</p> <p>6. Where an administrator pays a tax to which the estate is subject, he is not to be charged as for devastavit on the ground that there may be some technical defect in the entry of the assessment or otherwise. Where there is an unauthorized investment of funds of the estate by the administrator, the equitable title of the distributee and the legal title of the administrator continues until the rejection of the investment by the distributee, and srrcli investments are subject to taxation as the property of the estate until rejected.</p> <p>7. Where the administrator was the partner of the deceased intestate, and has in his possession, as such surviving partner, funds collected as attorney, which are claimed by others, but in which he thinks the intestate liad rights, and lie is in doubt as to the party entitled, and the party on whose account the collection was made will not instruct him how to apply the money, it is proper for him to file a bill of interpleader, and when he produces the money and x>ays it into the court under an order of court, subject to the litigation, lie is not chargeable with the sum until it is received, or max'- be obtained by him from the court, in the event the estate is held entitled to it.</p> <p>8. Exceptions to a master’s report, taken after the entry of an appeal from the order made by the court upon the rex>ort, cannot be heard.</p> <p>0. The xierson subsequently apxioiuted administrator of the deceased intestate finds a considerable cash deposit in a bank to the credit of the deceased. He makes a contract with the bank by which the estate was to receive interest thereon. He is properly chargeable with the sums, principal and interest, which he received under the contract.</p> <p>10. The amount fixed by the Chancellor, for condensation to an administrator lor his services after evidence and hearing will not be disturbed in a ease where this court can see no error in the sum allowed. An additional annual allowance for services, however, cannot be made.</p> <p>11. That an administrator has made investments not authorized by the statute is no ground upon which to deny him condensation for his general services in a case where there is no loss to the estate by such investments and the administrator settles in accordance with the law controlling the matter of unauthorized investments.</p> <p>12. The forfeiture incident to a simple failure ol an administrator to file his returns and have them allowed and approved as required by law extends only to his commissions on amounts collected or disbursed. If the animal account of an administrator is placed in the hands of the Judge of the County Court at the time required by law, his failure to place a file mark on it does not result in a loss of commissions by the administrator. The Judge of the County Court should mark the account and vouchers filed, whether he approves them or not. If the return is not made as required by law, the administrator is entitled to 'no commissions. The first annual return of an administrator should embrace a period of one year commencing from the date of his letters of administration. A return is not required to he filed by the first day of June, unless between that date and the letters of administration a year has elapsed. '</p> <p>13. The exercise of discretion by the Chancellor in fixing the allowance by way of compensation and commissions to an administrator when within the limits fixed by law will not be disturbed l>y this court except where it clearly appears that the allowance is too much‘or not enough.</p> <p>14. The surviving member of a firm uses au account of the firm, supposed to have accrued before the death of the deceased partner, against, one of their clients in a transaction with such client by which he, the survivor, makes the claim available and uses it. Upon an accounting between the heirs and distributees the surviving partner is properly chargeable with such claim as an asset of the firm, notwithstanding the party allowing' the claim swears no such sum was due. This in a ease where the party thus settling the account waived, .at the time, all right he may 'have had to recover the amount from the firm or guy member thereof.</p> <p>15. A surviving partner cannot object that interest, upon a balance found due by him upon an accounting- before a master between him and the heirs and distributees of the deceased partner, is allowed from the date the amount is ascertained, and the balance struck by the master.</p> <p>Hi. Whore the conclusion from the testimony is that an administrator could have readily collected a balance due the estate upon a judgment with the use ox that reasonable diligence and care that a prudent man exercised in his own affairs, the administrator should be charged with it. Shepard’s Heirs vs. Shepard’s Administrator, 19 Fla., 300, cited and approved.</p> <p>17. The administrator set up as a ground of appeal, , that lie is charged “ compound interest on money not actually reduced to possession,” and fails to show any particular item or charge in which this has been done. It is not the duty of this court to look through several volumes of a record in search for illegal charges of any kind for either party, when they are not pointed out. Such grounds of appeal are to bo regarded as “ frivolous.”</p> <p>18. Because there is no guardian of an infant appointod. is no reason why funds in the hands of an administrator in which she has an interest is not to bear interest under the statute during the administration.</p> <p>10. An exception to the effect that there is error in the balance found against the defendant, and on the final accounting, no items being mentioned, is frivolous.</p> <p>20. Upon a previous appeal in the judgment of this court there was assessed as costs the sum of 820.75 for a “certified copy of the opinion to the Circuit Court.” A sum paid by either of the parties for an additional copy of the opinion for their use, is not properly chargeable in the costs of the suit.</p> <p>21. Costs incurred in the Circuit Court after the entry of the appeal, such as a charge for certified copy of the record of the decree appealed from, are taxable in this court and not in tlic Circuit Court.</p> <p>22. A demurrer interposed in the Circuit Court is overruled. There is no question of the equity of the bill. Upon appeal this court discovers that an infant plaintiff was not preperly before the court; that, the widow of the deceased intestate was suing in a right which did not exist, and had omitted to make certain allegations. Upon remanding the cause this court directed that an amendment be allowed. The defendant as to costs under those circumstances should stand in no better position than if he had set up the grounds in his demurrer, and the court should have sustained his demurrer. Costs of the amendment and no more should have been allowed. This was the extent of the additional cost incurred and no more under the usual practice was permissible.</p> <p>28. Whore tlic suit is by distributees for an account at the hands of the administrator, who is also a debtor to the estate as surviving partner in a partneraliip of which the deceased intestate was the other member, and the distributees in said suit claim and reoover a balance against him as surviving partner, neither the estate nor the interest of any distributee should be charged with any costs incurred in connection with the accounting as surviving partner, where the claim is resisted by the surviving partner after a failure by him to render an account of partnership transactions. Here the surviving partner has no claim to costs, either as between party and party or as between attorney and client. As to the matter of the suit for distribution notwithstanding the disallowance of some of the claims of the administrator, and notwithstanding the fact that upon an accounting he is found indebted to the distributees, he is entitled to his costs as between party and xiarty, and also to any reasonable charge which he has incurred for attorney’s fees, in the matter of his accounting and settlement as administrator in a case where I19 has acted in good faith without fraud, and his administration is followed by a full and fair settlement, and where from the positions assumed by the distributees lie was forced to submit to litigation in order to arrive at any fair settlement.</p> <p>24. An adult distributee is not resxionsible for all the costs incurred in a suit for the settlement of an estate in which a minor is a codistributee. If not paid from the estate a xiortion of the costs would go against the next friend. Here a xiroxiortionate share should be charged against the xiart of the funds coming to the infant, as the suit is in good faith and for her interest by the next friend.</p>

<p>1. The act of the Legislature of 1877, Chapter 8025, amending section 29 of the act of 1869, (providing for the incorporation of cities and towns,) authorized the County Commissioners to prescribe new boundaries of an incorporated town, when, on the petition of five registered inhabitants of the town setting forth that “the boundaries of the town are of unreasonable and unnecessary extent, ’ ’ it shall be found by the Commissioners that the boundaries of such town “are extended beyond necessary and useful limits, and include an undue amount of vacant farming lands.” Another section of the act of 1877, authorized the County Commissioners to enlarge the boundaries of any city or town on the application of the corporate authorities thereof. Under this act the County Commissioners had no power to change the territorial limits of the town of LaVilla, Duval county, except upon the ground that the boundaries were ‘‘ extended beyond necessary and useful limits, and include an undue amount of vacant or farming lands ; ” and these premises not existing, the order of the Comity Commissioners, made in December, 1877, reducing the limits of LaVilla, was unauthorized and void.</p> <p>2. It was not lawful for the Commissioners to sever a portion of the territory of LaVilla for the sole purpose of annexing the same to the City of Jacksonville.</p> <p>3. The proceedings of tribunals created by law must be shown-to be within the powers expressly granted, and acts done by them not within such prescribed limits are nugatory.</p> <p>4. The act in question was not inimical to the Constitution as conferring judicial functions upon County Commissioners ; the powers conferred were not judicial within the meaning ol' the Constitutional restriction; they involved only the exercise of ordinary judgment and discretion in reference to the public interest and convenience, like that required in locating roads, bridges and other such affairs.</p>

<p>Appeal from the Circuit Court for Duval county.</p>

<p>1/ The creditors of a dissolved insolvent corporation may seek a court of equity to subject its real property and effects to sale to satisfy its debts without proceeding at law to judgment, execution and return of nulla bona. In this case the time in which, by the statute, the existence of the corporation for the purpose of being sued was continued had expired.</p> <p>2. The dissolution of a corporation does not extinguish its debts. The debts survive, and its creditors may enforce their claims against any property belonging to the corporation which has not passed into the hands of a bona fide purchaser. Such property is affected - with a trust primarily for the benefit of creditors.</p> <p>3. The expiration of the time during which an execution may be issued upon a judgment «under the statute without proceeding by scire facias quan'e executionem, non does not destroy the binding efficacy of the judgment upon the land of the debtor, and the judgment creditor can resort to proceedings other than that of scire facias when he can make them available to collect his debt.</p> <p>4. Scire facias qua/re executionem, non does not lie upon a judgment against a dissolved corporation after the expiration of the time' in which its existence is continued for the purpose of being sued.</p> <p>5. Real property levied on under a junior judgment and sold, is still subject to the lien of an older judgment, and the circumstance of not proceeding upon the older judgment until a subsequent lien has been obtained and oarried into execution will not displace the prior lien. The case of Moseley vs. Edwards, 2 Fla., 429, cited and followed.</p> <p>6. The statutory limitation to an action upon a judgment in this State is twenty years. Where the judgment is against a dissolved corporation, the time which has expired is fifteen years, and during the greater part of this time there was no corporation in existence from which payment of interest or principal of the judgment debt could have been demanded, or against which proceedings to revive the judgment for the purpose of obtaining an execution thereon could be had, and there is no circumstance from which payment could be inferred, a court of equity will not refuse to enforce the judgment on the ground of laches or presumed payment of the debt. Buckmaster vs. Kelley, 15 Fla., 193, cited and followed.</p>

The provisions of the will of Converse Parkhurst are as follows: First. I give, devise and bequeath all my property, both real and personal of every name and kind, and wheresoever situated, unto my executrix and executor hereinafter named, upon the following terms : First, I direct my executrix and executor first to pay all my just debts. Second.

<p>1. A suit in equity by one or more members of an unincorporated association for the purpose of mutual lire insurance, seeking tk»appointment of a receiver of the property of the association and the continuance of its business by him, should be brought against the other members of the association and not against its executive officers alone.</p> <p>á. Where the claim is for damages resulting from false and fraudulent representations made by the defendants to the plaintiffs, the remedy, if the plaintiffs have a case, is at law not in equity.</p>

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

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

Writ of error to the Circuit Court for Alachua county, Judge Vann of the Third Circuit presiding. The facts .of the case except the testimony are stated in the opinion. The testimony as it appears in the bill of exceptions is as follows: The State, to maintain the issues on its part, produced as a witness one Mrs. Laura Britt, who being sworn testified as follows: The prisoner came to my house and said he had not seen us for a long- time, and thought he would stop awhile.

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

The Governor, Comptroller, Treasurer, Commissioner of Lands and Immigration and the Attorney-General are ex-officio Trustees of the Internal Improvement Fund of the State of Florida. The other facts of the case are stated in the opinion.

Chapter 3416, of the Laws of Florida, approved March 3, 1883, and commonly, however inaccurately, spoken of as “ the Local Option Liquor Law ” is the statute in question. The respondent is Collector of Revenue of Duval county. The other facts are stated in the opinion.

The County Commissioners are Chas. T. Carroll, Geo. W. Taylor, Daniel H. Bryan, James B. Roach and T. J. Moore.

<p>Writ of Error to the Circuit Court for Escambia county.</p> <p>The defendant in error'moved to dismiss the writ because it “ was not sued out by a party to the judgment below.”</p>

Writ of error to the Circuit Court for Escambia county. After the dismissal of the writ of error in the preceding case this writ was brought in the same case by Gagnet, the Marshal of Pensacola.

Writ of Error to the Circuit Court for Escambia county. Plaintiffs obtained from the Clerk of the Circuit Court a writ of attachment upon the following affidavit and bond: IN ESCAMBIA COUNTY CIRCUIT COURT, STATE OF FLORIDA. Wm. P. Ross, Alfred Keen, Josiah Morrow, Chas. K. Lincoln and John Ross, Partners as Ross, Keen & Co., vs. Joseph L. Steen.—Damages $900. “Before 'the subscriber personally appeared Wm.

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

<p>1. Declaration alleging that defendant employed plaintiff as civil engineer to take charge of construction of a road and authorized to employ and hire teams and transportation in the course of such employment at defendant’s expense, and plaintiff employed and paid for teams, &c., in the performance of liis duties, is not demurrable. Such contract entitles him to he reimbursed for reasonable outlay for means of transportation.</p> <p>3. Letters written by the Chief Engineer of a railroad company, not being- of the res gestae, are not admissible in evidence in favor of the company.</p> <p>S. Testimony as to what expenses were necessary to he incurred by an engineer upon one section of a road in its construction, is not competent to show what outlay was proper upon another section, there being no evidence that the conditions were the same in both sections.</p> <p>4. The statute requires that a Judge shall give or refuse to give to the jury such instructions as may be proposed by counsel, as proposed. An alteration of such instructions by the Judge, who then gives them to the jury as amended, is a refusal to give them as proposed and is error, if the instruction in either form is material, and tlie jury may he misled to the injury of the party excepting. If the instruction is not pertinent to the evidence there can he no error in refusing it.</p>

Blackshear & Co. sued West for damages for injuries to their horse, occasioned by the defendant’s negligence. The declaration contains two counts. The first count in substance alleges that the defendant, on or about the first day of December, A. D. 1882, hired from the plaintiff' a horse, and that while he had the same on hire, he treated it in such a careless and negligent manner that the horse became wounded, damaged, sick, lame, and deteriorated in value.

<p>1. The act of March 11, 1879, Chapter 8181, and the act of February 22, 1881, Chapter 8247. providing- a summary proceeding by warrant of distress for securing the rents due to and the advances made by the landlord or at his request, by which the property liable to seizure is levied upon without personal notice to the tenant, is not'in conflict with the constitutional provisions which secure the right of trial by jury, and declare that no person shall be deprived of property without due process of law. The acts provide that the tenant may have the matters in dispute tried by a jury on replevying the property and tendering an issue.</p> <p>2. The forms of administering justice and the powers of the courts are subjects of legislative control.</p> <p>8. Where a proceeding is substantially a proceeding in rein, a seizure of property in the possession of the owner for the enforcement of a lien upon it, is held to be sufficient notice to the owner, if no other notice is required by the statute.</p> <p>4. The statute giving a lien and remedy to the landlord for rent and advances enters into and forms part of the agreement for leasing.</p> <p>5. The provision of the Constitution that “the right of trial by jury shall remain inviolate ” does not confer a right to a jury trial where the right did not before exist, but secures the right against abridgment in cases where it existed prior to the adoption of the Constitution. There is no infringement so long as the right is not directly or indirectly denied.</p> <p>6. A note promising to pay a sum of money for rent of land to which is appended a stipulation that if this note and another for the same amount shall be promptly paid when due the payee shall make title to the land to the maker of the notes, otherwise the amonnt to be deemed as rent only is but a promise to pay rent, which may become purchase money upon full compliance by the lessee.</p> <p>7. The landlord’s lien for rent and for advances as provided by the acts of 1879 and 1881 may be enforced by a single distress warrant, covering both claims ; the claim for advances being a lien upon the crop only while the lien for rent may be satisfied out of the crop and other property kept on the premises.</p>

<p>1. It is error to receive in evidence the statement of a party made in his own behalf to a third person, without in any way connecting the other party therewith, as it furnishes no legal proof of the facts claimed to exist, by reason of such evidence. Especially is it error when such evidence has a tendency to mislead the minds of the jury in coming to a correct conclusion,</p> <p>2. It is a well established principle that hearsay evidence “ is held incompetent to establish any specific fact, which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge.”</p> <p>3. It is a presumption of law, that the father is not bound to pay a child, though of full age, for services while living with him at home, and as one of the family, but this presumption may be overcome by proof of a special contract, or an express or implied promise or understanding ; and such implied promise or understanding may be inferred from the facts and circumstances shown in the evidence.</p> <p>4. The plaintiff, a female of full age, agreed to work for her father, as she testifies, during his life, or until she was discharged-; that the father agreed to convey her a certain piece of land as compensation for her services. The agreement was not in writing ; she so worked for her father for twelve years ; he then discharged her, and conveyed the land to a third person. She brings an action at law for her servie'es. The court instructed the jury in substance that the plaintiff could only recover the land, or the value of it, and if there was no evidence of the value of the land, the verdict should be for the defendant: Held, to be error. The agreement not being in writing, and being for the conveyance of land, she could not maintain an action for specific performance, but could upon a qurndum meruit.</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>

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

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

February 7th, 1883, C. R. Jeffreys and T. E. Stribling, partners, commenced suit by summons which was served on the 8th. On the 7th Stribling made an affidavit for procuring an attachment against Coleman’s property, and filed a bond signed in the firm name of “ Jeffreys & Stribling,” and by sureties. A writ of attachment was issued and levied on defendant’s property.

Trial before Mr. Wm. B. Young as Referee. Hubbard sued McClenny in assumpsit for merchandise sold to him. in May and June, 1881. Defendant denies the indebtedness. The cause was by consent referred to Wm. B. Young, as referee, who found in favor of plaintiff for the amount claimed, and a motion for a new trial having been overruled, judgment was. entered and defendant appealed.

<p>1. The statute regulating- appeals from orders and decrees of the County Court in Prohate proceedings contemplates that the appeal shall he entered in writing by the party appealing. A mere verbal request made to the County Judge to enter an appeal in his minutes, furnishes no ground for a mandamus to compel the Judge to enter the appeal, if he neglects to comply with such request.</p> <p>2. The County Judge may, in a spirit of accommodation, enter an appeal in writing at the request of a party, but it is not a duty enjoined by law. A judicial officer ought not to be made responsible for the sufficiency of pleadings and proceedings of parties.</p>

<p>Appeal from the Circuit Court for Escambia county.</p>

<p>1. Under the law of municipal corporations in this State they are authorized upon a vote of the electors to issue bonds to meet municipal expenses or for any municipal purpose. The statutes require that the amount to be issued, as well as the issuing of such bonds, shall be thus submitted to the electors, and in the event a required majority is given makes it the duty of the City Council to assess and collect such taxes from the citizens as are necessary for the* payment of the interest as well as for the final payment of the bonds. The tax so directed to be levied is not a “special tax,” within the meaning of chaxJter 3313, Laws of 1881.</p> <p>2. There are outstanding bonds of a city which the city desires to compromise by an issue of new bonds to take up the outstanding bonds. The question of the issue of the bonds and the amount to be issued is submitted to the qualified electors of the city ; the required majority is given for the issue and the amount to be issued; the statute in this event made it lawful for the bonds to be issued : Held,,, That the recital by the Mayor and Council in the proclamation submitting these questions that they were assured that the old bonds would be surrendered was no condition under the law for the issuing of the new bonds, and that the new bonds thus issued, if within the amount authorized and otherwise legal in the nature of their obligation under the statute, were valid and binding obligations upon the city.</p> <p>3. In such case the fact that the courts of the United States are entertaining jurisdiction to enforce the old bonds against the city does not prevent the city authorities from levying a tax to pay the new bonds to the extent to which an exchange has been made.</p>

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

<p>1. The fact that a testatrix by her will bequeaths certain mentioned property to her husband, and also certain other property to other relatives, but does not dispose of her entire property, is not evidence that she intends to exclude her husband from participating in the residue.</p> <p>2. Under the laws of this State, where the wife having separate property, dies without a child, but makes a will disposing of a portion only of it, the surviving husband is entitled to tile residue of such property, both real and personal, after the terms of the will have been carried out. McC. Dig., 471, §12.</p>

<p>Appeal from the Circuit Court for Leon county.</p> <p>The 2d, 3d, 4th and 5th items of the last will and testament of Mr. David C. Wilson, Sr., were as follows:</p> <p>Second. I will and direct that the present mercantile business of D. C. Wilson & Co. be continued during the natural life of my wife, Elizabeth Wilson, provided the same can be done with profit and satisfaction, under the supervision of my said executors and executrices, one-half of the net profits thereof to. go to the credit of D. C. Wilson, Jr., and the other half to the credit of my estate. [This business was discontinued some time before the death of Mrs. Wilson.—Rep.]</p> <p>Third. I do will and direct that all the rents, issues and profits arising from my real estate be devoted to the support of my family, consisting of my wife, my daughter, Mary Catherine, and my daughter, Florida A. E. Warden, and her three children, R. A. Gribson, Lizzie and I). L. Warden, and if the rents, issues and profits aforesaid, be not sufficient for that purpose, that so much of the net profits of the firm of D. 0. Wilson & Co., belonging to my estate, as may be necessary to supply the deficiency, he used and applied for that purpose.</p> <p>Fourth. I do will and direct that no division, under any circumstances, shall be made of my estate', either real or personal, until the decease of my wife, Elizabeth Wilson, but that the same be subject to and under the control of my said wife, under the advice and assistance of my executors and her co-executrix.</p> <p>Fifth. It is my will and desire that on the death of my wife, my estate be equally divided, share and share alike, between my children, or in the event of the death of either of them previous to the decease of my wife, the portion of such deceased child or children shall go to his child or children, such child or children inheriting in place of its deceased parent.</p>

Appellants brought ejectment against respondents, Lofton and McDonell, executors of E. M. Thompson, to recover certain lauds in Duval county, and a verdict was had against plaintiffs, who appeal from the judgment thereon. Plaintiffs proved a deed executed by Lofton to Eliza G-. Magruder in 1876 ; that she died in 1883, and that Eushing’s wife, one of plaintiffs, was her daughter and only heir at law.

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

<p>1. A section or a part of a section of a statute providing a method by a corporation of exercising the right of compulsory purchase of land may be unconstitutional. If, however, there are sufficient independent provisions constitutional'in their character to provide a complete method of proceeding, effect will be given to such last named portions of the act and the condemnation authorized.</p> <p>2. Section 20 of chapter 1987, being the general statute for the incorporation of railroads in this State, in so far as it authorizes a railroad company which has not acquired title to land upon which it has constructed its track to have an appraisal for the damages done to the owner thereof to remain in possession during the pendency of the proceedings, and to have a stay of all actions pending against the company on account thereof on such company paying into court a sufficient sum to pay the compensation therefor when finally ascertained, is constitutional. The rights of the several parties under this section, so far as it controls this case, determined. So also is there sufficient and adequate means to ascertain the value of the land constitutionally prescribed and fixed by the 14th section of the same act.</p> <p>3. The mode or method of exercising the right of eminent domain in the absence ot any provision in the organic law regulating it is within the discretion of the Legislature. The limitation is that it shall be exercised for a public purpose, with just compensation ; and vesting the power of ascertaining it in a court and appraisers,. is constitutional. It is not necessary that the owner shall have the right under the act to institute the proceeding to condemn the property, or that his right of action should be increased.</p> <p>4. In cases of actions by land owners against railroad companies, the Legislature has the power to prescribe reasonable rules, staying such as seek to dispossess the company pending constitutional proceedings of condemnation by it.</p> <p>■5. Prior occupation of the land without authority of law even though it be a trespass, will not preclude the company from taking subsequent measures authorized by law to condemn the land for its use.</p> <p>6. This court will not issue a writ of prohibition to the Circuit Court when it is acting within its constitutional powers in the enforcement of the constitutional provisions of the act above named.</p>

Johns county. The intestate, Chas. 0. Lake, died after the commencement of the suit, and Walter Lyon was appointed administrator of his estate, and made party complainant. The other tacts oí the case are stated in the opinion.

This is a creditor’s bill filed by respondents against appellants. Respondents obtained judgments amounting to $2,296.85, against Louis M. Ballard, in assumpsit; executions were issued and returned nulla bona. The bill alleges that L. M. Ballard has made a fraudulent sale and delivery of his’stock of merchandise to H. D. Ballard, to defraud the creditors oí Louis M., and to evade the payment of his just debts.

Appellant filed his bill in chancery to foreclose a mortgage executed by Mitsger on the 12th day of April, 1881, on land in Brevard county described as lots five and six and north half of southeast quarter of section one, township twenty-two, of range thirty-five, containing 169.78-100 acres to secure payment of a note for one thousand dollars given by Metsger to Price, due in one year.

<p>A decree pro confesso must be reversed where the record discloses that it is based upon an order striking out a plea, which order does not appear to have been made after entry of the motion to strike on the chancery order book or after notice of any other character to the defendants.</p>

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

<p>1. A levy of general municipal taxes upon real and personal property in 1882 was not authorized by law, the power to assess having been abrogated by chapter 3024, laws of 1877, and the sale of land for taxes attempted to be levied in that year was properly enjoined. A dissolution of the injunction was erroneous.</p> <p>2. Such injunction will not operate to prevent the future collection of taxes, the levy of which was validated by chapter 3477, laws, approved March 5, 1883. The validity of that act was sustained-in the case of city of Jacksonville vs. Basnett, decided at this term.</p>

Bill for partition filed July 14, 1877, by appellants, who claim that they and certain others named are heirs at law of their grandfather, Timothy Street, who died intestate in 1833, and of Henry Street, the sou ot said Timothy, who died in 1860.

The bill of complaint is, omitting the address, as follows : Julius A. Hayden, of Orange county, Florida, brings this his bill against Barton II. Thrasher, Barton II.

<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>1. An application for the continuance of a cause is addressed to the sound discretion of the court, and ordinarily such discretion will not be interfered with by the appellate court. But where the court can see that the rights of the party may have been jeoparded, and the rule in regard to the application has been iully complied with, and there lias been no previous delay, and especially when the application is made on the very day of the finding of the indictment, this court will control such discretion.</p> <p>2. On the trial of a prisoner for an assault with a deadly weapon with a premeditated design to effect the death of the person assaulted, it is not sufficient for the court to charge the jury that “ the assault must have boon made with a dangerous or deadly weapon.” The question of premeditation is also a fact for the jury to find, and they should be satisfied of such f act by the evidence, beyond a reasonable doubt. |</p> <p>3. To enable this court to determine that there was error in the refusal of the court below to charge the jury upon the law, with reference to proof made on the trial, upon which refusal so to charge the alleged errors are based, such evidence should be brought here in the bill of exceptions in order to inform this court as to the applicability of the request to the facts proved.</p> <p>4. In no case, civil or criminal, will an appellate com t indulge presumptions adverse to the correctness of the rulings of the court be • low. The presumptions which are indulged in are in support of the judgment of the court.</p> <p>0. When either the State’s Attorney or the attorney for a defendant, in cases provided for by Chapter 2096, Laws, desire the court to charge the jury in writing,' a request to that effect must bo made in wiiting before the evidence is closed. The party cannot subsequently except to the oral charge, unless he has complied with the law in that respect.</p> <p>6. A weapon may be a deadly weapon, although not especially designated for offensive or defensive purposes, or for the destruction of life or the infliction of injuiy.</p>

Writ of Error to the Circuit Court for Orange county. Chapter 8481, Laws of Florida, is as follows: Section 1.

This was an action'against S. Brash and Henry Brash to recover upon their alleged written promise to pay a debt due Eckman & Yetsburg from another, H. Brash. The declaration alleges that II.

<p>An appeal does not lie from an order, in a case at law, granting a continuance. Such order may be assigned for error upon an appeal from the final judgment.</p>

Writ of Error to the Circuit Court for Leon county. This case was heard before Judge Yann, of the Third Circuit, presiding in Leon county. The other facts are stated in the opinion.

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

<p>Writ of Error to the Circuit Court for Marion 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>

Samuel B. Thompson filed his bill in equity against James D. Matheson and Augusta S. Matheson, his wife, Charles E. Haile, and Elise W. Haile, his wife, and John S. Ramsey, in the Circuit Court for Alachua county, for the purpose of removing certain clouds upon the title to a lot of land owned by him. The venue was changed to Duval county, where the Chancellor rendered a decree sustaining-the bill, and the defendants (except Ramsey) appealed.

Writ of error to the Circuit Court for Madison county. The “ entry ” spoken of in tlie opinion as being “ at the foot of the indictment ” is below the signatures of the State Attorney to the indictment. The other facts are stated in the opinion.

<p>1. It is necessary for an indictment to state tlio county within which tlie offence was committed, and tlie proof must affirmatively sustain suck allegation.</p> <p>.2. In a criminal case a new trial will be granted when all the evidence taken in the court below fails to establish the venue as laid in the indictment.</p>

Writ of Error to the Circuit Court for Leon county. This case was tried in the Circuit Court before Judge Vann, of the Third Circuit, presiding in Leon county. The facts of the case are stated in the opinion.

Writs of Error: 1st, to the Circuit Court for Levy county; 2d, to the Circuit Court for Alachua county. The facts of the case are stated in the opinion.

Boniel, plaintiff below, sued the appellant upon a contract of insurance made by plaintiff with appellant, through one Bell, its agent at Warrington. The following are the material facts appearing in record : Prior to and at the date of the fire out of which this suit arose T. C. Watson was the agent at Pensacola of several insurance companies of which appellant was one. He then had, and for several years previous had had in his employ at Warrington, Fla., one Gam.

<p>In an action of replevin, on the trial and bofore instructing the jury, the court asked the plaintiff to elect whether he would take the property or its value in case he should have a verdict, and plaintiff elected to take the value, the property having been redelivered to the defendants. Thereupon the court charged the jury that if they found for the plaintiff they should “ assess the damages at whatever sum may have been proven as the value” of the property, and the jury found for the plaintiff and “ assessed the damages” at a sum warranted by the proof of the value. Judgment having been entered for the amount of damages so found, defendants moved to vacate the judgment on the ground that the verdict should have assessed the value of the property and not damages, which motion was denied. On appeal it is held that the finding of the sum as “damages ” was, under the circumstances and the charge of the court, a finding of the “ value of the property,” and the plaintiff electing to take judgment for .the value was entitled to bis judgment for the amount so found by the jury, aud there is no substantial error in the judgment.</p>

<p>1. When in an action upon a conti-act the defendant pleads that he “ did not promise as alleged,” and also jileads specially that the plaintiff contracted with him as an agent of another and not otherwise, and that plaintiff knew this fact at the time of contracting, such sjieeial plea is only a repetition of the general plea that the defendant did not promise as alleged.</p> <p>2. The overruling of plaintiff’s demurrer to such special jileas may, therefore, have been erroneous, but such ruling did not change the issues or affect the legal rights of the parties. Such pleas only encumbered the record.</p> <p>8. Where upon the trial of such cause a verdict is found for the defendant, but upon appeal the record does not show the testimony nor th(j.rulings of the court thereon, nor the charge of the court to the jury, nor any exceptions, this court cannot reverse the judgment on account of the overruling of the demurrer to the jileas, as it does not apjiear whether the court admitted improper testimony in behalf of defendants, nor indeed that the jilaintiff introduced any testimony in the case to snxijiort the declaration.</p>

Wright and others, respondents here, brought their bill against appellant, alleging that they are the owners of a tract .of land described according to government surveys as the west half of the northeast quarter, and the east half of tlie' northwest quarter of section 14, township 19, south range 26, east, containing 160 44-100 acres ; that the land was conveyed by one Wylly to Doane in September, 1880; that complainants went into possession peaceably at the time the land…

<p>In ejectment it is incumbent on the plaintiff claiming under deeds to show proper conveyances from a party having title or prior possession, in order to put a defendant in possession to proof of his right.</p>

<p>1. The Laws of the State and the rules governing the Circuit Courts of the State provide the manner and time of making up and filing a bill of exceptions, so that it becomes a part of the record brought up by writ of error.</p> <p>2. Unless the law and the rules governing the court are complied with, the bill of exceptions is a nullity and cannot be considered in this court.</p>

<p>1. In the trial of an indictment for larceny it is always necessary to prove the value of the property alleged to have been stolen, in order to determine the grade of the offence and the penalty to be imposed.</p> <p>2. When the bill of exceptions in such a case embraces the testimony and does not show the value of the property so charged to have been stolen, and this court cannot see that -the proper verdict has been found, the court will award a new trial.</p>

<p>1. Due notice of the non-payment of a common bank check may be necessary for the protection of the holder, but a protest by a notary is not so ; such protest will not charge the drawer with the fees of the notary,.</p> <p>2. W. drew his check on the M. bank where he had ample funds, in favor ol the F. N. B., which being presented for payment at 11 o’clock was not paid, but M. bank informed payee it was good and would be paid at close of banking hours, which was the customary time for exchange of checks between them, whereupon payee at oncej caused the check to be protested by a Notary Public for non-payment. W. now sues payee for injury to his financial credit and reputation by unnecessarily causing the check to be protested. Held, on demurrer, that though protest was unnecessary, it was not a wrong to the drawer from which damage is presumed.</p>

Henry Clark and Sarah Alsop, the appellees, filed a bill against Patrick Crolly, the appellant, alleging Clark to be the surviving partner of a partnership, which was composed of himself and William Alsop, deceased, and did business at Jacksonville, Florida, under the firm name of Alsop & Clark, and that Sai’ah is the widow of said William, and that William died April 2d, 1888, in the City of Hew York, at his residence there ; and that complainants in March, 1884, agreed in…

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

<p>1. Where a Circuit Judge, in pursuance of Sec. 7, Art. 6, of tlie Constitution, lias been assigned to hold a term of court in a county in another Circuit, he becomes, pro hao vice, the Judge of the Circuit Court for that county during the continuance of that term ; and during that time the power of the resident J udge is superseded as to all causes ponding in the Circuit Court in that county.</p> <p>'2. The rules of the Circuit Court in equity require that when an injunction, receiver or other special order before final decree is desired, it shall be specially asked for in the bill. Rule 25.</p>

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

<p>1. In order to convict a defendant of the crime of perjury, the of-fence must be proved by the oath of two witnesses, or by the oath of one witness and by other independent and corroborating circumstances which is deemed of equal weight with another witness.</p> <p>2. After the jury retired to their room to consider of their verdict the Judge went home. Upon the return of the Judge the jury came into court to deliver their verdict. The Clerk was absent. The jurors were called and answered to their names, were then asked by the Judge if they had agreed upon their verdict, and having answered that they had so agreed, delivered the same in writing to the Judge. The Judge received the verdict and handed it to the Sheriff, and then adjourned the court until the following day. Before the Judge left the court room the Clerk came in, the Sheriff gave him the verdict of the jury and he recorded it in the minutes of the court: Held, not to be error ; the Clerk is only the official scribe of the court. He is to keep regular and fair minutes of all the proceedings of the court. The duty of signing the minutes so kept by the Clerk is imposed upon the Judge, and his signature alone gives them verity.</p> <p>8. The Judge may keep his own minutes of the court by entering them himself, make his own adjournments, swear the witnesses, receive the verdict from the jury, and record or cause the same to be recorded in the minutes, which he subsequently verifies by his signature.</p> <p>4. A motion in arrest of judgment arises from intrinsic causes appearing upon the face of the record. It is not the proper remedy for a wrong verdict, nor is it the proper remedy for an illegal admission of evidence. It does not and cannot take place and answer the purposes of a motion for anew trial.</p>

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

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

<p>A person in quiet possession of real estate as owner, may obtain an injunction to restrain others from dispossessing- him by means of process growing out of litigation to which he was not a party.</p>

Plaintiffs, respondents, Drew, Bowden, Dzialynski and Buckman, file their bill in chancery, and allege substantially that H. B. McOallum, in his lifetime, and on the 20th of January, A. D. 1881, executed a promissory note to S. B. Hubbard for four hundred dollars, payable one year after date, and that they joined in the execution of said note with hfen ; that while in form the note is a joint note, they were, in fact, sureties, the money being borrowed by him and for him;…

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

Appeals from the Circuit Court for Duval county. The appellees moved to dismiss. The other facts are stated in the opinion.

<p>Appeal from the Circuit Oourt'for Duval county.</p> <p>The case was tried before Mr. H. H. Buekman as Referee.</p> <p>The facts of the case are stated in .the opinion.</p>

<p>Appeal from the Circuit Court for Nassau county.</p> <p>The case was tried before Mr. Wm. B. Young as referee.</p> <p>The facts of the case are sufficiently 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. Tn the premises of a deed to a married woman tbe words of transfer are, “grant, bargain,' sell, alien, convey and confirm unto the said party of tlie second part, her heirs and assigns,” and the words in the Uahandum and tenendum clause of the deed are “ to have and to hold the aforesaid bargained premises, together with all and singular the rights, tenements, hereditaments and .appurtenances to the same belonging, unto the said party of the second part, her heirs and assigns, to her and their own sole and proper use, benefit and behoof in iee simple”: Held, That no equitable separate estate p>asses, and tliat the wife bolds the property as her separate statutory property.</p> <p>2. A married woman purchases property. She and her husband join in the execution of a promissory note for the purchase money. That the husband is insolvent is known to the vendor, and the credit is given, looking- to the separate statutory property of the wife : Held, That a court of equity will sequester the rents and profits of the separate statutory property of the wife to secure payment of the debt.</p>

Bill to foreclose a mortgage. The case of Lindsay vs. Matthews, 17 Fla., 575, contains a history of the mortgage. One Cole owned about 150 acres of land in Marion county, and sold the same to Matthews in 1873. Matthews borrowed the money to make the purchase from Eobinson, and to secure Eobinson had the land conveyed to him by Cole.

Writ of Error to the Circuit Court for Jefferson county. The following is a copy ot one of the bonds sued on: State op Floeida, County op Jeffebson. 8500.