Volume 21 — Florida Reports

This is a case of original jurisdiction. The alternative writ alleges- substantially that James E. Young and the other relators, naming them, are the County Commissioners of Columbia county ; that the “ Internal Improvement Act,” approved January 6, 1855, authorized the various counties through or near which any of the lines of railroad or their.extensions, contemplated by the fourth section of said act, should pass or in which they ¡might terminate, to subscribe for and…

On September 13,1883, plaintiffs in error, by their attorney, filed a praecipe for a summons and for a writ of attachment against the defendants’ property. An affidavit made by one of the plaintiffs was also filed stating that defendants were indebted to them in a sum stated and that defendants were non-resident. A bond of plaintiffs and two other persons was filed and approved, to secure defendants against costs and damages by reason of improperly suing out the attachment.

This is an action upon a bond given by one Hirschfelder .as principal, and Robinson as surety, under the following ■circumstances: Plaintiffs commenced an action at law .against Hirschfelder, to recover an alleged indebtedness. .Hirschfelder then filed his bill in equity, praying an aecounting between the parties, and obtained a decree that the suit at law be stayed upon his giving a bond with security, conditioned that Hirschfelder pay whatever amount might be decreed to be…

<p>1. When at the assembling of a Circuit Court, no grand jurors shall have been summoned in the manner provided by law, it is not error for the Judge presiding to order the Clerk to issue a special venire commanding the Sheriff to summon the number of qualified jurors so ordered from the bystanders, or the body of the county at large.</p> <p>2. Section 1, Chapter 3125, Laws 1879, gives to the court no discretion! in the matter of issuing a commission to take testimony. If the. proof on the part of the accused meets the requirements of the-statute, it is “made the duty of the Judge to order that a commission be issued.”</p> <p>3. In order to avoid the necessity of the issuing of a commission to examine a witness, under such circumstances, it is not sufficient for the prosecutor to admit that if the witness was present or examined on interrogatories, he would testify to the material facts, stated in the affidavit on which the motion is founded. The admission must be of the absolute truth of the facts so stated, or-the accused will be entitled to his commission, or continuance.</p> <p>4. Before the commencement of the trial, counsel for the accused moved the court for an order that all articles in the possession of the State, intended to be used in evidence, be placed in the hands of the Clerk or other officer of the court for their inspection. The State Attorney filed a statement, by which it appears that, all such articles had been seen and examined by counsel for defence and the experts in their behalf, and that they were fully-acquainted with such articles—and further agreeing that such articles should be submitted to counsel for defence before they were so offered in evidence. No denial of this statement was made by the defence. Held,, that in overruling the motion there, was no error.</p> <p>5. The examination of the accused in a criminal case, taken before a. coroner and jury, where such witness was not at the time under-arrest, or charged with the crime, and where he was instructed by the coroner that he need not answer any question that wouldcriminate him in any way, is proper evidence to go to the jury, when such witness himself is subsequently indicted and on trial for the offence.</p> <p>6. The general rule in such cases is that what a party voluntarily says. in relation to the offence is admissible in evidence against him, whether on oath or not. An affidavit made by him to procure a, continuance of the cause, or for a commission to examine witnesses, is not excepted from this rule.</p> <p>7. The credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified at the trial. In laying the foundation for such impeachment, it, is necessary to inquire of him as to the time, place and person involved in such supposed contradiction. Then the proof of the contradictions may be submitted to the jury. The witness cannot be contradicted except by proof; not by statements of counsel or other persons not under oath.</p> <p>8. When counsel, upon the trial of a cause before a jury, abusing his privilege to the manifest prejudice of the other party, makes statements with regard to evidence being adduced not pertinent and therefore not within his privilege,'it becomes the duty of the Judge to stop him at once. And if he fails to do so, and the impropriety is great, it is ground for a new trial.</p> <p>9. When improper and illegal evidence has been introduced and permitted to go to the jury under exception, and not withdrawn by the counsel offering it,' or the jury have not been instructed by . the court to disregard it entirely for every purpose, and the Appellate Court can see that it may have had a prejudicial influence upon the minds of the jury in making up their verdict, this is ground tor a new trial.</p> <p>10. Remarks of counsel in the argument of the case, outside of the evidence, and the reasonable bounds of argument, having no relation to the guilt or innocence of the accused and intended to excite , the passions and influeuce the minds of the jury against the accused, should be prohibited or -stopped by the court in the exercise of a sound discretion; and when they are indulged in by counsel, and not prohibited or stopped, it is good ground for a new trial.</p> <p>11. It is improper for counsel to add, by his own statement, a fact without the authority of an oath or evidence to the testimony as submitted to the jury. A statement of a fact by counsel not authorized or proven by the evidence, should not be allowed to go to the jury.</p> <p>12. It is proper for the court to charge the jury as to the distinctions made between direct and circumstantial evidence, especially in a case where such proof is in a great measure circumstantial.</p> <p>13. It is error for the court to charge, “If a homicide or killing is proven, and no ground of defence set up or proven as to the reason, or cause, or motive, the law presumes that it was premeditated, unless proven to be accidental or unintentional.” Premeditation is a question of fact for the jury, to be determined from the whole evidence.</p> <p>14. The charge of the court plainly explained to the jury the distinctions made by law in the different degrees of murder, to wit: the first, second and third degrees. Although perhaps unnecessary under the proofs, yet held to be no such error as would authorize a new trial, as it was in no manner prejudicial to the interests of the accused, and could not influence the jury against him in their findings.</p> <p>15. The statute of this State (Laws 1872, Chap. 1877), provides that a majority of the jury, in the trial of a capital offence, may recommend to mercy. If the court charge, the' jury on this question, it should be in the language of the statute. The court is not called upon to charge upon it. Counsel may read the act to the jury, and the Judge may give it to the jury if it is desired by counsel.</p> <p>16. The opinions of medical men are admitted as to the cause of disease, or of death, or the consequences of wounds, and as to the sane or insane state of a person’s mind, as collected from circumstances, and as to various other subjects of professional skill, though the witness founds them not on his own personal observation, but on the case itself as proven by other witnesses on the trial.</p>

<p>1. A judgment entered by tbe clerk in vacation ought not to be amended when it appears from the record that no judgment ought to have been entered.</p> <p>2. An execution against an administrator should be suspended when it does not appear on its face whether it is to be satisfied out of the individual property of the defendant or out of the pi’operty of his intestate.</p> <p>8. E. P. A., executrix of J. S. A., made a note by which she promised to pay to H. S. H., or his order $1,097, on demand, with interest at ten per cent., and signed said note “E. P. A., executrix of the estate of J. S. A.” Held, That this was the note of E. P. A., and did not bind the estate of J. S. A.</p> <p>4. E. P. A., executrix, having died, J. S. D. was appointed administrator de bonis non of J.' S. A., and was sued as such on the above note. Ho plea, answer or demurrer having been filed, the clerk in vacation on the proper rule day, on no other proof than said promissory note, entered judgment that plaintiff “ home and recover to, of and from the defendant as administrator of J. 8. A., deceased,” the amount of said note and costs. Here the judgment stopped without saying out of whose property it was to be satisfied. Plaintiff moved to amend the judgment “so as to haveitreadandappearofrecordas against the goods, <fc., of J. S. A, dee’d.” This motion was refused by the Circuit Judge: Held, That this ruling was correct, because on the proof before him, the clerk ought not to have entered any judgment, either against the defendant individually or as administrator of J. S. A., to be levied of the goods, &c., of the latter, and the court ought not to amend a judgment entered by the clerk when it appears from the record that the clerk ought not to have entered any judgment. The execution commanded the sheriff “that of the goods, &c., of J. 8. JD., as administrator of the estate of J. 8. A., deceased, you cause to be made ” the amount of said judgment and costs. The Circuit Judge, on motion, suspended this execution : Held, That this ruling was right because every execution against an administrator ought to be suspended unless it clearly shows on its face whether it is to he satisfied out of the individual property of defendant, or out of the property Of his intestate in his hands' to he. administered.</p>

<p>A sale of goods obtained under false and fraudulent representations works no change of property or title while the goods remain in the hands of the purchaser. Such a sale may he avoided by the vendor, and he can maintain an action in replevin for his goods.</p>

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

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

<p>A mortgage contained the following covenant: “ It is also agreed that the grantors shall pay all expenses of collecting said debt including attorney’s fees, and that said money shall be secured by this mprtgage.” The mortgagees brought suit in a court of law and recovered the debt secured by the mortgage and the judgment was paid, but defendant refused to pay any attorney’s fees paid out by plaintiffs in prosecuting the suit. Plaintiffs then filed a bill to foreclose the mortgage to reimburse themselves for the amount paid their attorneys in collecting the debt. Held, That the bill is well brought for a reasonable amount, to be determined by the Chancellor, upon proper proofs.</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 Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. Where with the full knowledge and in the presence of the owner of land a chartered railroad company wrongfully or without lawful right enters upon and takes possession, destroying the fences and superstructures thereon, and builds a line of railroad and runs its cars over it, the owner making no objection other than that the amount of damages offered by the company is not satisfactory, and the owner of the land lies by for over nine months without attempting to prevent the taking possession and occupation by the company, a court of equity will not enjoin the company from continuing to run its cars over the road. The conduct of the owner amounts to an acquiescence in the construction of the road over his land, and the public have acquired rights upon such acquiescence which will not be interfered with by a court of equity by injunction.</p> <p>33. Yet the owner has not lost his title to the land and may maintain an appropriate action at law to recover his damages.</p> <p>3. Such injury being of a permanent nature, the damages recoverable at law may include the whole injury or loss, and there can be no danger of further litigation to recover such damages ; therefore, there is no ground of equity jurisdiction to prevent or avoid multiplicity of suits : a judgment for the whole injury would be a bar to action for subsequent injuries arising from the same source.</p>

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

<p>1. A jury having determined the question of veracity as between two equally competent witnesses who contradicted each other, the court, on appeal, will not interfere.</p> <p>2. A certificate of deposit, by the terms whereof the money is payable to a married woman or bearer, is in effect a negotiable promise sory note payable to the holder.</p>

Writ of Error to the Circuit Court for Duval county.. The defendants in error moved to dismiss the writ.. The other facts of the case are stated in the opinion..

This case was tried and judgment therein was entered in .said Circuit Court, at the spring term thereof for 1884. Said court adjourned, and said term ended June 19, 1884.

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

The testimony is as follows : Chappell testifies that between November 15 and 20 he walked down and took the cars at the corner of Market and Duval streets; that lie entered the cars and walked to the forward end and turned to seat himself, and the car suddenly started throwing him a little sideways so that his leg struck the seat, and he fell to the floor of the car; the driver then stopped the car, and assisted him up, and said he was very sorry, that he thought Chappell…

Silas Kearnes and his wife, Sarah, bring their bill against L. L. Hill, Wilbur Lassiter, James Spencer, T. W. Andrews, and his wife, Annie E., and Calvin Cagle, and his-wife, Emeline.

In the month of December, 1883, Theophilus West, the plaintiff below and appellant here, filed in the clerk’s office of the Circuit Court in and for the county of Jackson his affidavit for an attachment, as follows: “ State oe Florida, Jackson County, “ Before me personally came Theophilus West, who being duly sworn, deposes and says that Joseph W. Woolfolk is indebted to him, the said Theophilus West, in the sum of four hundred and twelve dollars.

<p>This is an appeal from an order of the Circuit Court forDuval county overruling a demurrer to a bill in chancery -</p> <p>The bill was filed December 12, 1882, by the appellee,, a body corporate, against Calvin L. Robinson and Joseph D-Mitchell, as Trustees and in their own right, Elizabeth, S'. Robinson, and Lucretia R. Foss, as Trustee and in her own right, Harvey Durkee and William L. Seymour, and against •J. O. Marcy, Jr., as Special Master in Chancery, and alleges :</p> <p>1st. That Calvin L. Robinson and Mitchell, on October 26, 1869, executed to Wm. M. Bostwick and wife two promissory notes, each for the sum of $5,735, payable respectively one and two years after date to their order, and to secure the same, executed on the same day to Bostwick and wife a deed of mortgage, which, on the same day, was recorded in the records of Duval county, in this State. The notes and mortgage were signed “ Joseph D. Mitchell, Trustee,” “C. L. Robinson, Trustee.” The mortgage styles Robinson and Mitchell, “ Trustees of Harvey Durkee, Joseph D. Mitchell and Calvin L. Robinson,” the bill alleging it to be a fact, and that it is recited in the mortgage “ that said Robinson and Mitchell are Trustees in equal interest for themselves and the defendant, Harvey Durkee.”</p> <p>2d. That the notes and mortgage were given to secure the payment of part of the purchase money for the mortgaged premises, (lands in said county) conveyed on the same day by Bostwick and wife “ to said Mitchell and Robinson, Trustees.”</p> <p>■ 3d. That the notes not having been paid at maturity, a bill to foreclose the mortgage was filed by Bostwick and wife against Robinson and Mitchell, Trustees, in said Duwal Circuit Court, on the 12th of December, 1874, and on the 4th day of October, 1879, a decree for $14,753.31 was made ior the complainants in said suit, and a sale of the mortgaged property by the court, and on the first Monday in December, 1879, the property was sold to Bostwick for $3,000, and on August 13th, 1880, “ a further order was made in the suit by which the balance due on the decree, to wit: $12.174.12, was made a decree against the defendants, Mitchell and Robinson, Trustees.” This decree, after reciting that it appears by the report of the Special Master that the above balance is due to Bostwick and wife oyer and above the proceeds of the sale of the mortgaged prem-' ises, continues as follows : “ ISTow, on motion of Fleming.# Daniel, plaintiffs’ solicitors, it is ordered, adjudged and decreed that the plaintiffs, William M. Bostwick and Eliza S. Bostwick, do have and recover of and from the defendants, Calvin L. Robinson and Joseph D. Mitchell, Trustees, the said sum of twelve thousand one hundred and seventy-four dollars and twelve cents,' with legal interest thereon from the 16th day of December, 1879, and that execution ■do issue for the same.”</p> <p>4th. That execution has issued on said la.st named decree, but no part thereof has been paid.</p> <p>5th. That on July 29th, 1882, Bostwick and wife assigned said last named decree to the complainant, which is the owner thereof. A copy of the assignment is annexed to the bill as an exhibit. It purports to “ sell, assign and transfer ” to the complainant the said decree of August 13th, 1880, “ for its sole and proper use and benefit, hereby authorizing the said Springfield Company to collect apd ■enforce payment thereof in our names or otherwise, but at its own'costs and charges.”</p> <p>6th. That said mortgaged property has been exhausted and said Mitchell and Robinson have no other property in like trust except as hereinafter alleged.</p> <p>7th. That “ inasmuch as Mitchell and Robinson, by their said mortgage deed, set forth that they are trustees for themselves, thus uniting in themselves the equitable and legal relations, they are personally bound by said decree to the extent at least of two-thirds of the amount due thereon.”</p> <p>8th. That Mitchell owns a valuable homestead of a half acre in Jacksonville, and other property, real and personal, within thejurisdiction of the court, but the same is encumbered with mortgage and other liens, and the equity of redemption would bring but little, if any, price on a forced sale under execution,”</p> <p>9th. That Calvin L. Robinson, soon after making said notes and mortgage to Bostwick and wife, commenced, and has continued, to the filing of the bill, a series of fraudulent transactions and transfers of title by which he has vested or attempted to vest in the defendant, Elizabeth S., his wife, and in said Lucretia R. Foss, (Mrs. Robinson’s sister, and a resident for many years in R’s. family,) and said Seymour, (the half brother of Mrs. Robinson,) all his property, amounting in the aggregate to the value of over $50,-000; that Mrs. Robinson, Miss Foss and Seymour had no money or property of their own, and paid no money or other valuable consideration for the property of which the legal title at the instance and by the. fraudulent acts and transactions of Calvin L. has been vested or attempted to be vested in them; that all the property, the legal title to which is held by or appears in their names, was purchased or paid for with money or other valuable consideration belonging to Calvin L., and, in fact, is his property, and so far as the title thereto is vested in Mrs. Robinson, Miss Foss and Seymour, it is in trust for Calvin and subject to the payment of said judgment.</p> <p>10th. That without a discovery from defendants, complainant cannot state with certainty all the land and other property, the title to which has been, or is now, in the names of Mrs. Robinson, Miss Foss and Seymour, by the fraudulent acts and contrivances of Calvin L. That said lands, as complainants are informed and believe, lie in Duval, Nassau, St. Johns and Clay counties, and elsewhere within the jurisdiction, ’of the court. A schedule ot the lands lying in Duval county is attached to the bill.</p> <p>11th. To specify some of the fraudulent acts and contrivances of the defendants to defraud complainant’s assignors, Bostwick and wife: that on May 6,1873, C. L. R. being the owner in fee of Lot 5, of Block 43, and Lot 3, of Block 49, and Lots 1 and 2, of Block 56, in Jacksonville, executed a deed of conveyance thereof to Miss Eoss, “ the consideration named in the deed ” being $3,400, and she conveyed the same to Mrs. Robinson, the same consideration being named in this deed, and it bearing date May 7,1873 ; that on the-day of November, 1872, Calvin L. being the owner of Lot 3, Sec. 6, T. 2, S., R. 27, E., 64 acres, executed a deed of conveyance thereof to Miss Foss, and she' by deed dated-,-, attempted to convey the same property to Mrs. Robinson ; that no consideration passed to Calvin L. or Lucretia for said conveyances,, but he was at that time largely in debt. They were made to defraud Bostwick and wife, and his other creditors, and place the property beyond their reach, which conveyances are fraudulent and void against complainant, and said property, except Lot 3, of Block 49, -is subject to complainant’s judgment lien.</p> <p>That Lot 6, of Block 70, in Jacksonville, was conveyed to Mrs. Robinson by the Sheriff of Duval county, on October 12,1872, by virtue of a decree of foreclosure in favor of Calvin L. against Rosa Gingerger et al., on a note and' mortgage to Calvin L.; that no money was paid for the property by Mrs. R., but the same was bid off in her name by him in part satisfaction oi' the decree, in order to prevent the same from being subjected to his debts.</p> <p>That another tract of 75 acres, (part of the Hendricks or Haddock Grant,) was mortgaged to Calvin by Lucius A. Hardee, and was thereafter, April 6, 1871, sold and conveyed by the Assignee in Bankruptcy of said Hardee, (the consideration tor the conveyance being the said mortgage debt,) to C. L. Robinson, Mrs. Robinson actually paying nothing, but said Calvin L. procured the title to be placed in her name to defraud Bostwiek and wife, and others of his creditors, and she holds the title thereto, and to said Lot 6, Block 70, in trust for the benefit of said Calvin.</p> <p>That Lot 1, Block 55, Jacksonville, was conveyed to Mrs. Robinson by Porter and wife, by deed dated April 19, 1873 ; that Lot 6, of Block 53, Jacksonville, ,was conveyed by Hemming, as commissioner, to her by deed of. same date, and these lots were paid for by Calvin L., and the title placed in Mrs. Robinson, in fraud of Calvin’s creditors, and such title is held by her as trustee, and for the benefit of Calvin, and his equitable interest therein is subject to complainant’s said judgment.</p> <p>12th. That Calvin has had and asserted the entire and exclusive management and control of the lands so fraudulently conveyed to his wife, and Miss Foss and Seymour, has negotiated the purchase and sale thereof, paid the taxes thereon and dealt in all respects with said land as his own, excepting only that for his own fraudulent ends he used the name of his wife, and Lucretia Foss and Seymour, to conceal and cover the title from his creditors.</p> <p>13th. That there are many other creditors of Calvin, some of whom have placed their claims in judgment, and who, complainant prays, may be required, if they avail themselves of this suit, to contribute to the same in proportion to their several interests in the result.</p> <p>14th. That among other deceptive and ■ fraudulent acts committed by said Calvin, to cover arid conceal his real title and interest in said lands, he, on the 27th of June, 1874, prepared, and had executed by himself and the defendant Mitchell, a deed of conveyance to Miss Eoss of certain lands in Duval county, being part of the lands conveyed to Mitchell and Robinson by Bostwick and wife, October 26, 1869, viz: 6 blocks and 7 lots in Springfield, a suburb of Jacksonville, the deed being signed “ C. L. Robiuson, Trustee, J. D. Mitchell, Trustee,” and after being acknowledged was recorded in Duval county records, December 4, 1874; and" afterwards, on the 30th of June, 1874, Miss Eoss, Mitchell and Calvin entered into a written agreement under seal in the nature of the defeasance to said deed, in which it is recited that whereas, Elizabeth S. Robinson of said county has loaned to the said trustees the sum of two thousand dollars, and as security for the said sum the said trustees have this day executed to the said L. R. Eoss a a warranty deed of certain lots and blocks in Springfield.” Said last stated instrument was recorded February 19th, 1879, and a copy is annexed to the bill. (It provides that if the said trustees shall pay said sum with interest at 1J per cent, per month, on or before January 1st, 1875, and all costs, expenses and reasonable attorney’s fees in case of foreclosure, said deed shall be void.) That Miss Foss, on June 23,1882, filed a bill in ehancery, as trustee for Mrs. Robinson in said Circuit Court, against Mitchell and Robinson, “ trustees for themselves and Harvey Durkee,” praying that said deed and defeasance be treated as a mortgage and foreclosed. A decree has been rendered in such suit, appointing J. C. Marcy, J-r., Special Master, with power and direction to sell said 'land for the purpose of paying the amount found by such decree to be.due Miss Eoss as trustee for Mrs. Robinson. A copy of such special Master’s advertisement of a sale of blocks 4, 6, 8 and 43, and lots 1, 3, 4, 7,11,15 and 16, in block 2, in Springfield, to take plaee December 4,1882, is annexed to the bill. That by the terms of the mortgage from Mitchell and Robinson, trustees, to Bostwick and wife, provision wa3 made on certain payments and conditions therein expressed for the release by B. and wife of parcels of the mortgaged premises, and B. and wife did, at Robinson’s request, on payment by R., in person, to B., of $1,100, release by deed, of May 28, 1874, to Miss Foss, Lots 1. 3, 7, 11 and 15, Block 2, and Block 6, they being part of the lands described in the deed of June 27,1874, from Mitchell and Robinson to Miss-Foss. That other of said lands, viz: Lot 16, Block 2, and Blocks 4 and 43 were not released from the operation of .the said mortgage. Lot 16, Block 2, and Blocks 4 and 43 were sold to Bostwick under the decree of foreclosure in favor of himself and wife against M. & R., trustees, and have since become and are now complainant’s property, and not subject in anywise to the lien of the pretented mortgage to Miss Foss. A sale of said last mentioned lands will cast a cloud over complainant’s title to the same. The lands embraced in the mortgage from Mitchell and Robinson,, trustees, to Miss Foss, if the same be of any valid force and effect, and not void by reason of the fraud of R. and his confederates, should not be sold under said decree; they are worth greatly more than the amount of said decree, and if the court, on the final hearing, should hold that said deed and defeasance are good and valid, and that the $2,000 was loaned by Mrs. R., and that Lucretia, as trustee for Mrs. R. is entitled to bo paid, “ complainant is prepared and now offers to pay the same, the court staying the sale' by said Master under said Foss decree, and holding said lands subject to the payment of the amount due” complainant herein on the Bostwick and wife decree.. Complainant avers ánd-charges, however, that neither Miss Foss nor Mrs. Robinson'have any beneficial interest in said mortgage and the decree thereon ; the $2,000, if paid at all, belonged to Calvin, the release from Bostwick and wife was originally made to M. & R., trustees, and afterwards ■changed, at Calvin’s request, with the purpose and intention on his part of covering so much of his property from his ■creditors, and in truth and equity all the lauds embraced in said notice and decree in the Eoss suit, and so released, are subject to payment of complainant’s said claim.</p> <p>15th. There is strong reason to fear, and complainant apprehends and fears that defendants, if not restrained, will ■convey, mortgage or otherwise alienate or complicate the title to the lands which complainant claims to be subject in ■equity to the amount due to complainant.</p> <p>16th. The interrogatories inquire as to the relation of the 'parties defendant to each other, what property they own, what lands they have acquired since October 26, 1869, whether they hold title for their own use and benefit or for ■some other person or persons by express or secret trust, for whom and what conditions and uses, for a description of the lands, the consideration paid, by whom paid, whose money and what kind of money was paid, if money belonged to them of whom, where and what way it was got, and call on them to state all about the consideration, whatever it was, and to state lands they have conveyed, mortgaged or leased since October 26, 1869, the consideration therefor, &c., &c., how paid, and what was done with the money or other consideration.</p> <p>17th. The bill prays that Miss Eoss, as trustee for Mrs. Robinson, be enjoined from enforcing or attempting to en-fore the decree obtained against Mitchell and Robinson, October 14,1882, by sale or otherwise, and the master, Marcy, be restrained from selling until the further order of the court, and that Robinson, his wife, Miss Eoss and Seymour, be restrained from alienating or encumbering “ all or any part •of the property to which they have or claim to have any right, title or interest, either in law or equity, which has been acquired since the 26th of October, 1869, and for discovery as to the nature and source of their title to all such property ” now or since the 26th day of October, 1869, owned or claimed by them ; and that the deed of June 27, 1874, from R. & M., Trustees, to Miss Eoss,be decreed fraudulent and void, or if the same be sustained that complainant’s title to blocks 4 and 43 and lot 16, block 2, be held free from all lien or encumbrance of said deed, and that the remaining lots and blocks described therein be decreed as held by Miss Foss in trust for Robinson, and subject to the payment of complainant’s claim, or, if it is held that the deed was made in good faith to secure the $2,000, that complainant be permitted to pay the amount due on said decree, and the mortgaged property be subjected to payment of complainant’s claim ; or that, in case it is held “ as last above stated, that so much of the property conveyed by Mitchell and Robinson, trustees, to Lucretia to secure the-payment of said lien of $2,000, as was released by said Bostwick and wife, * * * be sold, the amount found to be due-Lucretia, trustee, first paid, and the residue paid to complainant and that for any balance due on said Bostwick and wife decree owned by complainant, the defendants, Robinson, Mitchell and Durkee, be held personally bound,, and that all lands and other property, the title to which, at the time of the filing of this bill, was in the name of Mrs. Robinson, Miss Foss, Seymour, or any other person hereafter made party, which*has been acquired or paid for-with money or other valuable consideration belonging to Robinson, or otherwise held in trust for him, be subjected; to the payment, of complainant’s said claim, and then follows a prayer for general relief.</p> <p>The defendants appeared, by solicitors, and afterwards, on February 6, 1883, the Chancellor granted an injunction against Marcy, as master, Robinson and Mitchell, trustees, and Miss Foss, from selling blocks 4, 6, 8, 43, lots 1, 3, 4, 7,11,15,16, in block 2, Springfield, till the further order of the court.</p> <p>On February 5th, 1883, Mitchell filed a demurrer to the bill as being multifarious. The affidavit to the demurrer is made by H. A. Pattison, wbo swears he “ is the solicitor for J. D. Mitchell; that Joseph D. Mitchell is absent from the State, and has been since the filing of complainant’s bill, and that said bill is not interposed for delay.” The certificate that the demurrer was not interposed for delay was added under an order permitting it, made by the Chancellor February 9th, 1883.</p> <p>On July 2d, 1883, Mitchell moved to dismiss the bill as to himself, because the demurrer had not been “ set ” in compliance with Equity Rule 55, and the clerk entered an order dismissing the billfor want of setting down defendants’ demurrer pursuant to Rule 55.”</p> <p>Robinson and wife, Miss Foss and Seymour, demur to the . bill, “ and for cause of demurrer show—</p> <p>“ 1st. That the said complainant has not by its said bill made such a case as entitle it in a court of equity to any discovery or relief from or against ” them.</p> <p>2d. Complainant, as assignee of a decree, has no title on which it can maintain said bill.</p> <p>3d. Bostwick and wife as mortgagees, and complainant as their successor and assignee, are not creditors in the, meaning of the statute, and if defendants made any conveyances or purchases as alleged they are not void as to complainant.</p> <p>4th. Complainant having no judgment lien on any of defendants’ own property, as shown by the bill, complainant cannot inquire into any conveyances by. these defendants of their property.</p> <p>5th. A decree in equity pronounced in a distinct and separate suit will not be enjoined or altered, nor will the execution of such a decree be enjoined at the prayer of strangers, in another suit in equity.</p> <p>6th. The bill is argumentative and alleges conclusions of law, without distinctly setting out facts of complainant’s claim. Alleged fraudulent conveyances are not set out with definiteness, nor are the other creditors of C. L. Robinson named, nor are such acts as constitute an intent to defraud creditors alleged with certainty in the bill.</p> <p>7th. The bill is multifarious.</p> <p>8th. There is no allegation in the bill that complainant has exhausted its remedy by levy and sale under its decree, and has not shown itself entitled to discovery.</p> <p>The demurrer was set down, and upon argument was overruled by order of February 27, 1884.</p> <p>Defendants appeal.</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 Duval county.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. A receiver should not be appointed except on notice to the party whose property is to be divested, “except in cases of the gravest emergency, demanding the immediate interference of the court for the prevention of irreparable injury.”</p> <p>3. A bill asking the appointment of a receiver, without notice to the party whose rights are to be affected, should set forth with particularity the facts and circumstances relied on to justify an ex pa/rte exercise of this extraordinary power.</p>

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

The judgment appealed from was entered at the Spring Term, 1883, of said Circuit Court, and he appeal of appellant was thereupon entered in open court. Pending said appeal, Joseph W. Russ died, leaving a will which was •duly admitted to probate. Mary W. uss and Moses Gluvton qualified as executrix and executor of said will, and voluntarily came in as parties defendant to said appeal. The other facts of the case are stated in the opinion.

Daniel'F. Sullivan, the original- appellee in this cause, died during the pendency of the appeal in the Supreme Court, and his executrix and executor came in voluntarily as parties appellants to said appeal. The facts of the case áre stated in the opinion.

Statement of the case: This case involves the constitutionality of the statute entitled “ An act to dissolve, municipal corporations under circumstances therein stated and to provide provisional governments for the same,” approved January 28th, 1885, and the act amendatory thereof, approved February 12, 1885.

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

This is a claim to property by C. W. Smith & Co., made under section 20, chapter 7, and section 22, chapter 102, McClellan’s Digest. The property is alleged to have been attached as belonging to ¥m. IT. Simpson, by the sheriff, at the suit of John P. Richardson.

<p>1. A judgment of a referee does not stand confirmed and become the; judgment of the Court in which the cause was pending at the time of the reference until the lapse of ten days from'the service, of notice by said referee of the fact of the filing of his findings- and judgment upon the respective parties to said judgment.</p> <p>2. A., stockholderof unincorporated company, or joint stock association, agrees with B., an employee of said company, to allow B. for services “twelve and fifty one-hundredth dollars a week, to be drawn from the funds of the company.” By such an agreement, A. does not become prima facie liable to pay said sum to B.</p>

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

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

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

Judge Vann, of the Third Circuit, sat in the place of Justice Raney, who was disqualified. The facts of the case are stated in the opinion.

<p>Appeal from the Circuit Court for Jackson county.</p> <p>This is an action of trespass on the case upon promises. The declaration is in the common counts tor the price and value of goods sold and delivered “ by the plaintiff to the defendant at defendant’s request in a store account of defendant with the plaintiff,” and for money paid by plaintiff for defendant, and on an account stated. The open account, or “ bill of goods ” sued on, is filed with the declaration. The defendant, Salomon, filed three pleas, as follows :</p> <p>1st. That before the action he had discharged and satisfied the plaintiff’s claim by giving it a draft for the full amount on J. W. Woolfolk, of Columbus, Georgia, payable ten days after date, which the plaintiff accepted in full payment and satisfaction of said claim, and which draft plaintiff endorsed and transferred before it became due, to one Isaac Joseph.</p> <p>2d. The second plea is a reiteration of the first plea, adding thereto: “And the said Isaac Joseph brought suit upon said draft against defendant in the Circuit Court of Jackson county, Florida, which suit was tried and a judgment rendered in favor of defendant, which judgment has never been reversed and is still in full force.”</p> <p>3d. The third plea is set out in the opinion. The plaintiff demurred to each plea on the ground that it does not constitute a defence, and to the second plea on the further ground that it does not show that the suit mentioned in it “ was between the plaintiff and defendant herein; though a plea of res adjudicata does not show what the issue was between the parties to the suit mentioned.” The demurrer was sustained, and there was an assessment of damages by a jury, and final judgment for the plaintiff, and defendant appealed..</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court for Madison county, to which the case had been transferred 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 Jackson county.</p> <p>Judge Walker, of the Second Circuit, sat in place of Mr., Justice Raney, disqualified.</p> <p>The facts of the ease 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>In civil suits, generally, presumptive evidence as distinguished from direct evidence of marriage is prima faeie sufficient, as when aman and woman cohabit together, and speak of each other as husband and wife, and of the circumstances of their marriage, and the like, but in suits where criminal conversation, adultery, polygamy, &o., constitute the essence or foundation of the action, a more rigid rule is required. In such case presemptions do not apply, and in order to convict the defendant the marriage must be proven.</p>

Appellant filed his bill in the court below against the appellee praying that she be enjoined from proceeding further in an ejectment suit against appellant, for the recovery of possession of certain land, and that she be compelled toexcute a conveyance in fee of said land to appellant. The bill alleged- that on July 1,1878, appellee was a married woman and was seised and possessed in her own right under the constitution and statutes of Florida, of certain lands.

<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>

The appellants published in their newspaper, The Florida Times-Union,on March 20,1883, at Jacksonville, of the intestate J. E. Townsend, who departed this life subsequent to the entry of this appeal, the following article: “We support Mr. DeCoursey for A ssessor because he is one of the young colored men of this city who stands highest for character and ability.

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

The ease was tried before Joseph B. Christie, Esq., as referee. This is an action of trespass on promises. The first count is a draft drawn by one Clarke, in favor of Roche, on Broward for $204.41, dated May 24, 1881, accepted by Broward.

<p>Appeal from the Circuit Court for Hernando county.</p> <p>This bill was filed by Iverson H. Caruthers against the ■defendant, Robert W. Williams, and alleges that about the first of February, A. D. 1883, that he discovered that a certain piece of land in said county,.to wit: the east half of the southwest quarter of section twenty-four, township twenty-one, range twenty, south and east, containing eighty acres belonging to the “ Florida Land and Improvement Company,” could be purchased for one dollar and a quarter per acre. That there had formerly been some .impirovements on a part of the tract made by a man named Mayo, and that it was generally believed that Mayo had entered the land; that on finding out the fact that it was not Mayo’s land, he went to the office of the Florida Land and Improvement Company, and made an agreement with the agent of said company to buy the land for one hundred dollars, the money therefor to be paid on the 7th of February, 1888; that failing to get the money from the source that he expected, he applied to the defendant, Williams. He told Williams about the land and his agreement with the agent of the Florida Land and Improvement Company, and asked him to loan him the money to buy it; that he, Williams, might take the titles in his own name as a security for the reimbursement of the money, and that he would pay him interest on it at the rate of twenty-five per cent. That said Williams agreed to loan him the money as requested on the terms mentioned; that they went together to the office aforesaid and bought the laud in accordance with their agreement; that Williams, before and at the time of purchasing the land, agreed to make him a deed to the same at any time when he should repay him the said sum of one hundred doilars with twenty-five per cent, interest. That on the Sunday following said purchase, he told Williams he would be ready on the following day to repay him the money loaned, and would do so then but for its being Sunday; that Williams refused to let him have the land on such terms; that taking the advice of an attorney he some time in the month of March next following tendered Williams one hundred and three dollars. The evidence shows that the money was tendered on the 24th of March. Defendant refused the money tendered, and complainant on the 6th of April following filed his bill. The prayer of the bill is that it may be ordered and decreed that said defendant holds said land in trust for the complainant.</p>

Writ of Error to the Circuit Court for Escambia county.. It was agreed that judgment should be entered in all of the above entitled cases in accordance with the judgment which should be entered in the case of city of Pensacola, vs. L. & N. R. R. Co. Petition filed under Chapter 151, Laws of Florida, to declare the tax assessment of the City of Pensacola upon property of the Louisville and Nashville Railroad Company within said city unlawful.

Mrs. West and her husband filed their bill for partition in chancery, against Mrs. Keil, Mrs. Palana, and Mrs. Peters and her husband. The subpoena which issued on the bill in March, 1884, does not state “ that the bill is filed for a partition of lands,” as required by section 3, page 802, McClellan’s Digest. On the return day in April the appellant appeared to the suit.

<p>Appeal from the Circuit Court for Hernando county.</p> <p>Judge Walker, of the Second Circuit, sat in place of Mr. Justice Raney, disqualified.</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>

Judge Walker, of the Second Circuit, sat in the place of Mr. Justice Raney, disqualified. The facts of the case are stated in the opinion.

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

This is an action brought by the appellee to recover upon a policy of insurance.

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

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

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

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

<p>1. 'To entitle a party to relief on a bill in equity filed by bim to enjoin a sale of property claimed by bim, wliicb, if tlie sale occurred would be a cloud on bis title, be must show title in bimself. If be fails to do so be cannot be injured by sucb a sale.</p> <p>3. When the cloud proposed to be removed by the bill would not, if an action of ejectment was brought upon it against the true owner, be sufficient to cause said owner to be put to proof of its inefficiency, and was not apparently a good title, no cloud exists and the interference of a court of equity cannot be invoked.</p> <p>[Raney, J., dissenting as to the rule announced in the 2d head-note, under chapter 3432, Laws of Florida. ]</p>

The facts of this case, so far as necessary to an understanding of the points decided, are as follows: The appellees, Susan M. and Sallie H. Sloan, filed on ■July 5th, 1883, their bill in equity against John B. E. Sloan and William P. Hall, citizens of South Carolina, Adié E. Waterman and Summerfield M. Gf.

<p>1. Tlie State moved for a continuance of the trial upon an indictment for murder, supporting the motion by a written statement of the State Attorney of what the absent witness would testify if present. The prisoner objected to the continuance on the ground that the witness had never been before the grand jury, and that the indictment was found without his testimony. The Circuit Judge ruled that the continuance should be granted unless the prisoner should waive the presence of the witnesses and agree that if present he would testify to the facts set out in the statement. The prisoner excepted to the ruling,' but thereupon agreed in writing to waive the presence of the witness, and to admit that the witness would, if present, testify to the facts stated. The bill of exceptions purports to give all the testimony used on the trial before the jury which was afterwards impanelled, but neither it nor the record shows that such statement or agreement, or the testimony of the witness, was used on such trial : Held, There is nothing to show that the ruling had any effect upon the verdict, and it will not be reviewed in the Supreme Court on a motion for a new trial.</p> <p>3. A venireman stated on his vow dwe that he had formed an opinion as to the guilt or innocence of the accused, who was charged with murder, and that it was not formed from hearing or conversing with the witnesses in the case ; that if he went into the jury box he would give a verdict according to the evidence ; “that it would take a reasonable amount of evidence—that it would take conclusive evidence to change his mind.” The Circuit Judge ruled that he was a competent juror ; Held, To be error and that he was not competent.</p> <p>S. A venireman stated on his voir dire that his opinion was formed from rumor ; that he had never conversed with the witnesses, and his opinion would yield readily to evidence, but he would rather not have heard what he had if he was to go in the jury box. The Circuit Judge ruled he was a competent juror : Held, Not to be error.</p> <p>4. Whether, where a venireman is erroneously ruled to be competent as a juror, notwithstanding his opinions are of such character as in law disqualify him to sit on the jury, and he is afterwards challenged peremptorily by the prisoner, and the record does not show that his peremptory challenges were exhausted before a full jury was sworn, it is a material error for which a new trial will be granted ? Quere ?</p> <p>5. Where a part of a charge to the jury is excepted to, the whole charge should be considered, and if the charge considered as a whole is free from the objection urged, the exception should be overruled.</p> <p>6. The Circuit Judge charged the jury that manslaughter in the second and fourth degrees only, was to be considered by them “ for the reason that under the admission of the prisoner that he did the killing with design to protect himself, the others are put out of consideration.” Held, To be error, as no such admission appears in the record.</p> <p>7. It is error to instruct the jury that the statement of the prisoner of his defence under the statute is to be received with caution because of the position he occupies. The statute gives the right to make this statement unqualified by such comment or caution from the Judge.</p> <p>8. The doctrine of reasonable doubt does not apply to proof of venue. If the evidence raises a violent presumption that the offence was committed in the county alleged, or it may be reasonably inferred from the evidence, it is sufficient. '</p>

The following opinion was delivered at the January term, 1885, but a petition for re-hearing having been died at the same term, it was taken under consideration by the court, and the decision thereon was rendered at the June-term, 1885. Therefore the case is reported with those of the-latter term. The facts of the case are stated in the opinion.

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

The appellants, Fanny R. Robinson and Benjamin M. Robinson, her husband, filed their bill in the court below against Mary Ellen Randolph, the widow of William M. Randolph, deceased, and the executrix of his will, James J. Daniel, trustee under said will, and against the devisees and heirs of said William M. Randolph.

. This is a case of original jurisdiction upon mandamus proceedings instituted in the Supreme Court- The recitals ■of the alternative writ .were as follows : Whereas, It hath been made to appear to the Supreme ‘Court of the State of Florida that the petitioner, James 0. •Donnelly, was, on the 23d day of June, A. D. 1885, the duly elected, qualified and acting Mayor of the city of Palatka, in the county of Putnam, and State of Florida, and was on that date holding, exercising…

The declaration, omitting the court, is as follows: “Now comes J. H. Geiger, by R..B. Bedford, his attorney, and sues the Savannah, Florida and Western Railway Company, operating a portion of their line, commonly known as the Waycross Short Line, from Jacksonville to Way-cross, Georgia, a portion of said road lying in said county of Nassau, said Short Line- not being fenced, for killing ten head of cattle, two head of sheep and five head of hogs in said county of Nassau,…

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

Writ of error to the Circuit Court for Manatee county. The facts of the case, so far as necessary to a decision of the points raised by the assignment of errors, are as follows: Groodman Bond, the plaintiff in error, killed Joseph Stephens, at the residence of D. J. W. Boney, in Manatee county, in June, 1877.

<p>1. The duty imposed by statute upon the Clerk of the Circuit Court to draw from the box the names of persons to serve as grand jurors at a term of the court may be performed by a deputy.</p> <p>S. When separate paragraphs or parts thereof of a charge to a jury are excepted to, the whole charge should be considered, and if considered as a whole the charge is free from the defects alleged, the exception should be overruled.</p> <p>3. The Judge charged the jury upon the subject of intoxication and insanity. There was no testimony as to the prisoner being a drunkard, or that he had been drinking, or was at the time of the killing under the influence of liquor, or as to any insanity or mental aberration or delusion, and nothing calculated to raise a reasonable doubt as to his being sober, and free from such mental affliction; Meld, That the refusal of a new trial should not be reversed even if there was error in the charge, the verdict being clearly sustained by the evidence and nothing appearing calculated to mislead the jury or to operate injuriously to the prisoner in view of the facts of the case.</p> <p>4. Objection to the argument of counspl as being beyond’ the evidence or otherwise improper should be made at the time of such abuse of the right or privilege of argument, and action of the court overruling the objection, and the fact that exception was taken to such ruling should appear, with the objection, in the bill of exceptions, in order to obtain a review of the ruling by the appellate court.</p> <p>5. Where an objection to remarks of counsel as violating the right or privilege of argument, or other objection of a similar character, is made in the trial of a cause before a jury, and no ruling of the court thereon is shown by the bill of exceptions, the objection will be held to have been waived. Likewise, if an adverse ruling- is shown, but no exception thereto.</p> <p>6. No exception to the omission of the Clerk of the Circuit Court to put the usual file mark on an indictment which has been pleaded to and of which the record shows due presentation by a grand jury in open court, can be raised primarily in the appellate court. Such omission., is of no practical consequence to the prisoner under such circumstances.</p>

<p>1. Upon au indictment for living in an opsn“state of adultery on a certain day and on dicers other days and times since said date to the day of the finding of the indictment, evidence of acts anterior to such time are admissible in evidence as tending to illustrate or explain similar acts within the period alleged in the indictment, or to corroborate testimony of such latter acts, but not to convict of a substantive oifence committed anterior to such period.</p> <p>3. Where there has been a conviction upon such an indictment, and there is no evidence of a living in an open state of adultery within the limited period, but there is proof of such a living about a year prior to the first day of such period, a new trial should be granted, the introduction of such evidence having been properly excepted to.</p>

<p>Appeal from the Circuit Court for Jackson County.</p> <p>Motion to strike bill of exceptions from the record.</p> <p>The facts of the case are stated in the opinion.</p>

The appellant, in April, 1884, filed his bill of complaint, alleging that on January 7,1884, “ C. H. LaCoste and R. A. Terry, copartners in the business of operating a saw mill, the entire machinery of which the said LaCoste claimed to have purchased from the manufacturers,of Cincinnati, Ohio, known as the Blymer Manufacturing Company, and alleged the same to be free from incumbrances, which said saw mill the said C. H. LaCoste and R. A. Terry were operating under the firm…