Volume 22 — Florida Reports

<p>1. The allegations of a return or an answer to au alternative writ of mandamus, should he stated positively, and not upon information and belief.</p> <p>2. The rules requiring pleas to he sworn to does not restrict a defendant to pleading matters of defence which are within his personal knowledge. The affidavit is required as an evidence of the pleader’s good faith in setting up the defence.</p> <p>8. If the alternative writ in a proceeding to compel the Comity Commissioners of a county to issue a permit under Chapter 3416, Laws of Florida, granting the right to sell liquors, wines or beer, makes the necessary allegation that the petition to the Commissioners was signed by a majority of the registered voters of the election district, and the return to the writ alleges ifai a proper manner that certain names appearing thereon as petitioners were not signed by, and the signing thereof is not the act and deed of, the persons represented by such names, and that without such names the petition does not contain a majority of the registered Voters of the district, a material issue will he raised, and the burden will be upon the relator to prove his averment.</p> <p>4. The applicant for the right to sell liquors, wines or beers, under the above statute, may sign his own petition and is to he counted the same as any other registered voter of the election district.</p> <p>5. The simple failure to publish the “marks” of a few petitioners whose names are published, is not a material defect in complying with the provisions of the statute.</p> <p>6. Although the statute requires that each petitioner shall sign the petition in the presence of two credible witnesses, it does not require the witnesses to subscribe to such signing.</p> <p>7. A person who has not obtained a permit from the County Commissioners under Chapter 3416, Laws of Florida, cannot lawfully carry on the business of a liquor dealer : such a permit is a warrant not only of the right, but also of the personal fitness, of the person to whom it may have been issued to conduct such business, upon obtaining a license from the Collector of Revenue under Chapter 3413, and is not transferable.</p> <p>8. The assignment of a liquor license issued under chapter 3413 to one who had not obtained such a permit, by another who has such a permit, does not vest the former with the legal right to conduct the business of a liquor dealer, and before he can lawfully become the assignee of such liquor license, issued under the latter act, and be vested with the legal right to carry on the business of a liquor dealer, he must, himself, have obtained a permit, under Chapter 3416, from the County Commissioners.</p> <p>9. A person who has obtained a permit under chapter 3416 may, during the license year (which is from October 1st to October 1st of the next year) or during such part of it as may not have expired when the permit is granted, carry on the business of a liquor dealer at as many places in the election district-as he may obtain liquor licenses for, under chapter 3413, from the Collector of Revenue, or by assignment from another who may have lawfully obtained them from such collector.</p> <p>10. A mandamus will not issue to enable a person to effect an illegal purpose, e. g. to compel the County Commissioners to issue a permit to sell liquors under Chapter 3416 to one whose purpose is to transfer the same, and a license to be issued by the Collector of Revenue, to another who has not complied with such statute, and to thereby enable him to carry on the business of a liquor dealer unlawfully.</p>

<p>1. The act of the Legislature passed 22d February, 1885, directing that the Collectors of Revenue in the several counties of the State pay over to the Treasurers of their respective counties all moneys collected on account of the one mill State tax for the support and maintenance of common schools, and that the said Treasurers of the several counties disburse the same as other school funds, is in contravention of section 7, Art. 8, of the Constitution of the State of Florida, which provides that the common school fund shall be distributed among the several counties of the State “in proportion to the number of children residing therein between the ages of four and twenty-one years.”</p> <p>2. A repealing clause in an unconstitutional statute, declaring that “all laws and parts of laws in conflict with this act be and the same are hereby repealed,” does not affect the previous laws.</p>

<p>Section 11 of Article VI of tlie Constitution, as amended in 1875, provides that the County Judge “may also have and exercise jurisdiction of such proceedings relating to the forcible entry or unlawful detention of lands and tenements, subject to the apjiellate jurisdiction of the Circuit Court, as may be provided by law Held, That future legislation was not necessary to make such provision operative, but its purpose and effect were that the County Judges should exercise jurisdiction of such proceedings applicable to the named subjects, as either the then existing, or future legislation might provide, and that the proceedings provided by the act of 1868 (Chapter 1630) may be enforced before such Judges.</p>

<p>This is a case of original jurisdiction.</p> <p>The facts of the case are stated iu the opinion.</p>

This is a case of original jurisdiction. Upon the filing of respondents’ return, to the alternative writ, the relator moved that the alternative writ be made peremptory.

Writ of Error to the Circuit Court for Duval county. Michael Kurtz was arrested in the county of Duval on the 19th day of January, 1886, upon a warrant issued by a justice of the peace as a fugitive from justice from the State of New York. On January 20th a writ of habeas corpus was issued by his Honor James M. Baker to the sheriff of said county, commanding him to bring the said Michael Kurtz before said Judge on the 21st January.

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

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

<p>1. Where a charge of the court to the jury embraces several distinct propositions, a general exception to the charge so given is not. available if any one of the propositions is correct. Dupuis vs. Thompson, 16 Fla., 69.</p> <p>2. On the trial of an indictment for willful and malicious destruction of property under the statute, (McC’s. Dig., chapter 56, sec. 5,) the value of the property is not a question for the jury, but the willful and malicious destruction of such property without regard to its value, is the question for their consideration.</p> <p>3. In such a case the destruction and malice may be proven by circumstantial evidence satisfactory to the jury.</p> <p>4. A person claiming land in possession of another, is remitted to his action at law or in equity to recover possession, and he cannot resort to destruction of property by fire or otherwise to get the possession.</p>

<p>1. On the rule day in March, 1884, which was the return day of a summons in assumpsit, the clerk made the following entry : “Judgment in default is hereby entered herein in favor of said plaintiff for the sum of $369.93 Held, That this was only a judgment by default.</p> <p>2. A clerk of a Circuit Court in entering judgment by default acts in a mere ministerial capacity, and if he does not conform to the statute, (sec. 7, chap. 1938, acts 1873,) his proceedings will be without any binding force.</p> <p>3. In entering a final judgment consequent upon a default, on an open account, the judgment should show what evidence was produced by the plaintiff to enable the clerk to ascertain and assess the damage and to show what was the basis of the judgment.</p>

<p>Appeal from Circuit Court for Levy county.</p>

<p>1. The heirs of a deceased person are entitled by the Constitution, (Art. IX, see. 8,) to the same right of exemption of property which be. longed to the deceased at the time of his death from forced sale, as the deceased had in his lifetime.</p> <p>2. A fund on which a claimant had originally no equitable or other right, may be substituted for another fun d which was subject to his claim, when the latter fund has been sold or otherwise disposed of for the benefit or relief of the former.</p> <p>3. But this principle cannot be enforced to the extent of divesting prior equitable lieus of third persons upon the fund sought to be substituted.</p>

<p>Appeal from the Circuit Court, for Gadsden County.</p> <p>The facts of the ease are stated in the opinion.</p>

Writ of Error to the Circuit Court for Duval county. This is a writ of error to the Circuit Court for Duval county, where final judgment was entered in the Clerk’s office, the demurrer to the defendant’s pleas having been sustained by an order of Judge Yann, of the Third Circuit, in the absence from the State of Judge Baker of the Fourth Circuit.

This was an action in repleven, commenced in January, 1884, in Jackson county, by John H. McKinne, the plaintiff below, against Thomas Holliday, the appellant and defendant, for a lot of corn, fat hogs, a yoke of oxen and two wagons.

On January 19, 1876, the appellant filed his bill, alleging the making of a promissory note by one Kellogg, payable to appellant, as trustee, and that John S. Adams, the testator, became guarantor for the payment thereof, and to secure the payment thereof he, the testator, made a mortgage of a certain piece of land to appellant, Mrs. Adams joining therein for the purpose of relinquishing her dower. A copy of the mortgage deed is annexed.

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

The appellee alleges in his bill that he is the only child and heir at law of John S. Adams, deceased, who died in the year 1876, seised and possessed, and in the actual possession of land described as his homestead and situate in Duval county.

<p>1. When a plea on equitable grounds consists of facts which are available to the defendant as a common law defence the court, on motion of plaintiffs, should strike out such equitable plea.</p> <p>2. The acceptor of a draft—non-negotiable—may pay the same to the payee thereof, after its maturity, oven though the draft be not produced and delivered up to the acceptor at the time of payment, provided the acceptor has had no notice of the transfer of the draft by the payee to a third person, and such payment would be a valid defence against the note, should suit be brought thereon against the acceptor by another person.</p> <p>3. If payment is made by the acceptor to the payee, and the draft be not delivered up at the time of payment, and suit is afterwards brought thereon against the acceptor by another holder claiming to be the transferee thereof, the 'burden of proof rests upon the plaintiff in the action—the defendant having proved the payment —to show that the defendant had notice of the transfer before the payment was made.</p> <p>4. The sufficiency of the evidence to prove the facts relied on to constitute notice is a question for the jury.</p> <p>5. In a suit by a transferee of a non-negotiable draft against the acceptor thereof, evidence of the existence, amount or nature of the indebtedness to such transferee, which was the consideration of such transfer, is immaterial and inadmissible.</p> <p>6. A charge asked is properly refused which would instruct the jury that as the draft was not negotiable that a payment thereof to the payee by the acceptor after maturity without demanding a delivery np to him of the draft was a valid defence against a holder claiming to own the said draft, who had sued the acceptor thereon, unless such instruction limits the right of the acceptor to pay said draft to the payee prior to his being notified of the transfer thereof by the payeo to such holder.</p> <p>7. Where a party under arrest for embezzlement gives a draft for the amount embezzled to the person from whom it was embezzled, such draft is not invalid unless it was agreed by tire parties that in consideration of giving said draft the prosecution should he suppressed.</p> <p>8. Where a non-negotiable draft, valid in its inception, and on which the payee could have maintained an action against the acceptor, was loaned by the payee to a person under arrest for embezzlement, to enable him to compromise with the party who caused his arrest, and such draft is transferred to such party, who brings suit thereon against the acceptor, such acceptor cannot resist payment of the draft on the ground that it was transferred to the holder in consideration of his agreeing to suppress the prosecution of the person to whom it was’ loaned by the payee.</p> <p>9. By our statute, Chap. 3241, February 25th, 1881, a person to whom a non-negotiable draft has been transferred by delivery thereof may maintain a suit thereon against the drawer or acceptor in his own name.</p>

This is an action of ejectment brought by the appellees, against the appellant on the 21st clay of August, 1884, to. recover a part of a lot of land in the city of Jacksonville. The testimony adduced by the plaintiffs in the Circuit-Court is as follows: A deed of conveyance from J. W..

Writs of Error to the Circuit Court for Duval county. The same points of law were involved in the two above entitled cases, and the following opinion in the ReQua case,, which was the only one delivered, covers both cases, the judgment of the court below in each being affirmed.

The original decision of this court in this cause was rendered at the June term, 1885. On petition of appellees, a rehearing was granted, and, at the January term, 1886, the court affirmed its former decision reversing the judgment of the court below. The facts of the case are stated in the opinion.

<p>1. When by a written instrument, signed and delivered by the person making the same to the beneficiary mentioned therein for an expressed consideration, the instrument being silent as to whether the consideration was paid, or as to the time when it was to be paid, the law will presume that it was paid at the time of the delivery thereof.</p> <p>2. Parol proof to show non-payment at the time of delivery would not violate the principle which forbids the contradiction or variation of a writing by parol.</p> <p>3. When an instrument in writing sued on is set out in the declaration in hæc verba, a plea which adds conditions and stipulations thereto which are not included in said writing, and from which plea it is apparent that it is the foundation for the introduction of illegal evidence, is demurrable.</p> <p>4. If a day be appointed for the payment of money, and the day is to happen or may happen before the act, which is the consideration therefor, is to be performed, the payment of the money is not a condition precedent to the performance of the act for which it served as a consideration.</p> <p>5. An instrument in writing appended to a paper purporting to be a bill for merchandise sold by one Stultz to one Powers in the following words : “ In consideration of seven and a half percent. I guarantee the above bill to the amount of two hundred dollars. (Signed.) A. Solary,” which was written by Stultz and presented by him to Solary for his signature as the conclusion of a negotiation between them, and is signed by Solary and delivered to Stultz, is a guaranty and not an offer to guarantee which would require acceptance by the beneficiary and notice thereof to the guarantor.</p> <p>6. It was of no legal consequence that Powers, the principal debtor, knew nothing of the transaction between Stultz and Solary.</p> <p>7. Plea of part payment of a sum claimed is a proper plea pro tanto.</p> <p>8. An extension of time for payment for a good consideration given by a creditor to his debtor, will discharge from liability a person who had guaranteed the debt to the creditor.</p> <p>9. An agreement by the creditor to extend the time of payment of the debt, guaranteed sixty days upon the debtor paying him a sum of money he owed him on another transaction, is not based on a good consideration, and will not discharge the guarantor.</p> <p>10. A charge of the court which refers to a jury the construction of a written instrument in evidence before them, and which contains no ambiguity which would justify the introduction of explanatory parol testimony and such evidence is not introduced or offered, is erroneous. The construction of such instrument is the province and duty of the court.</p>

<p>1. The improper joinder of two causes of action in a complaint under the forcible entry and detainer act is not ground for a motion to dismiss the action, but should be reached by motion requiring the plaintiff to amend his complaint by striking out one or the other of such causes of action.</p> <p>2. Surplusage of allegation not amounting to a statement of a distinct cause of action, does not constitute duplicity.</p> <p>3. A proceeding to recover against a “ forcible entry ” and one to recover against an “unlawful detainer” cannot be joined in one complaint under the forcible entry and detainer statute.</p>

This is an action brought by the appellants against the appellee for money paid by them to one Julius Kaufman at the appellee’s request, and for money lent to the appellee at his request.- There is a plea of never indebted in the record.

<p>1. An application for the continuance of a cause is always addressed to-the sound discretion of the court, and must he left to the tribunal which has the parties before it, and who must determine from a variety of circumstances occurring in its presence-whether such applications are made in good faith.</p> <p>2. Except it appears from the record that there has been an abuse of such discretion, whereby the rights of the party may have been jeoparded, the decision of the court will not he disturbed.</p> <p>3. Instructions given by the court to the jury are based upon the evidence adduced on the trial, and to enable the appellate court to-determine as to the correctness of the rulings of the court below, in granting or refusing- the instructions so aslced, that evidence must he produced in the bill of exceptions.</p> <p>4. It is a rule of law, well settled, that every presumption is in favor of the correctness of the ruling- of the court below, and in order to induce the appellate court to reverse such ruling it must appear that an error has been committed. And when a party fails to bring up the evidence upon which such ruling is based this court will refuse to consider the exception.</p>

<p>The County Court made an order confirming a sale of land and directing the commissioner to make a deed of conveyance to the purchaser upon her paying the purchase money. On February 7th, 1876, soon after such order, the commissioner executed an instrument to her which was deficient as a deed from having no seal affixed to it. On April 9th, 1885, the commissioner executed to her a deed bearing the former date, and in the acknowledgement of it for record stated it was executed on the latter day. In an action of ejectment brought by her in the Circuit Court against a third party to recover the land, the petition and other proceedings of sale down to and inclusive of the order confirming the sale, were read in evidence. The deed was then offered in evidence and was objected to because of the erroneous date in the introductory part thereof and as having been made without authority ; and it was excluded by the court. No default or laches upon the part of the purchaser in paying the purchase money, nor any fraud, nor any susx>ension of said order was shown: Held, To be error, and that the erroneous date did not invalidate the deed, nor did the execution of the imperfect instrument, and the lapse of time, abrogate the commissioner’s authority under the order to execute a perfect deed.</p>

<p>Dries obtained, a judgment in a Justice’s Court against tbe County of Duval. The defendant appealed to the Circuit Court, which dismissed the appeal upon the ground that the “judgment was so defective in form as not to constitute a judgment.” Dries afterwards applied for and obtained an alternate writ of mandamus directed to the County Commissioners of said county, commanding them to show cause why they should not levy a tax to pay said judgment. To this writ the defendants made return that the matter in controversy was res adjudicada and setting forth the judgment of the Circuit Court above quoted : Held, That it was a good defense.</p>

<p>1. Where a party claiming property levied on by an execution against another resorts to the statute, (Mc.’s Dig., sec. 22, pp. 524 and 525,) for the recovery thereof, if the proceedings are not instituted and conducted in accordance with its material provisions, they will be reversed on writ of error.</p> <p>2. When various executions on judgments of different persons between whom there is no connection are levied on personal property which is claimed by a third person, and such person asserts his claim under the statute, (McC.’s Dig., pp. 524, 525, secs. 23 and 24,) he should make an affidavit and bond separately to each plaintiff in Ji. fa. He cannot join in the same affidavit and bond all the plaintiffs in execution.</p> <p>3. When on a trial of the right of property, the affidavit made by claimant includes four different executions in favor of four different parties, and the bond of claimant is made to such plaintiffs in execution jointly, and the oath administered to the jury is to try the right of the claimant to the property levied on by executions in favor of one of the plaintiffs, naming him, “ and others,” and the jury find that the property is not liable to the execution of the party named, and is liable to the execution of a party not named in the oath administered to them, such verdict should be set aside on motion.</p> <p>4. No pleadings are required by the statute in a trial of the right of property, hut it would seem to be the duty of the court to so frame the oath administered to the jury as to inform them that by their verdict they were to determine whether the property levied on was the property of the claimant, or whether it was subject to payment of plaintiff’s execution.</p>

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

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

<p>An assignee of an insolvent firm is a trustee of cm ewpress trust under chapter 3241, Laws Florida, (McC’s. Dig., §72, p. 829,) and may sue at law in his own name as such assignee to recover the amount of an open account for goods, wares and merchandise assigned to him as an asset of the firm.</p>

<p>Where the damages assessed by the jury iu an action on a contract, express or implied, are plainly excessive, the verdict will he set aside.</p>

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

<p>Writ of error to the Circuit Court for Orange 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>

This is an action of assumpsit brought by the appellee against the appellant.

<p>1. A judgment of a court of record valid under the laws of the State where recorded is valid here.</p> <p>2. A plea to an action on a judgment of another State that the debt for which such judgment was rendered had been paid is a defence existing anterior to said judgment, and on motion should he stricken from the record.</p> <p>3. When a suit is brought in the courts of this State upon a judgment rendered in another State, the defendant can plead in bar that the court in which such judgment was recovered never acquired jurisdiction of his person.</p> <p>4. A transcript of the proceedings and judgment in a suit in the Superior Court of Massachusetts, which does not show that a summons to the defendant to appear was ever issued, or that the defendant appeared in person or by attorney to said suit, is inadmissible in evidence against the defendant named therein.</p> <p>5. A return by the sheriff, on another paper in the cause, that he had served a summons on the defendant, no summons appearing in the transcript, is sufficient to authorize the conclusion that such summons in fact existed or was served.</p>

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

This is a case of original jurisdiction. For opinion on motion to quash respondents’ first return to the alternative writ, see page 1, supra. The facts of the case are stated in the opinion.

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

<p>1. The statute of 1881, section 4, p. 481, McC’s. Digest, requiring a verdict for the plaintiff in an action of ejectment to state the quantity of his estate and describe the land, does not dispense with the necessity for a finding of his right of possession.</p> <p>2. A verdict in ejectment which simply finds “the fee simple title in the plaintiff to the following lands,” describing them, does not find the right of possession in the plaintiff, nor does it authorize the entry in behalf of the plaintiff of a judgment for recovery of possession of the land.</p> <p>3. Pleadings should be properly settled and issues of fact formally made up before a trial by jury is had.</p> <p>4. There must have been a judgment for the plaintiff in ejectment before proceedings can be instituted by the defendant therein under the “ act for the relief of occupying claimant. ” Chap. 132, McC’s. Dig.</p>

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

<p>1. Where it is attempted to join in one attachment, proceedings for debts due and for others not due, and the allegations of the affidavit as to the debt not due are insufficient, they will not vitiate the allegations or proceedings as to the debts which are due, hut will he treated as surplusage.</p> <p>2. That attachment proceedings for debts due and those not due can be joined in the same suit doubted, but not decided.</p> <p>3. The purpose of the statutory provisions as to an attachment for a debt not due, in requiring an affidavit that the debt or demand is actually an existing debt or demand, is to exclude from such remedy contracts upon which the liability of the defendant is still contingent.</p> <p>4. A percentage, payable as attorney fees, upon the amount of an unmatured promissory note in case of default as to the principal of the note, is a contingent liability, and not within the statute.</p> <p>5. Where other language than that of the statute is used in an affidavit for an attachment, it should be unequivocally substantial to that used by the statute. The statements of the affidavit as to the debts not due, held not to be equivalent to an allegation that they are actually existing debts or demands.</p> <p>6. The statement of the affidavit that the defendants are disposing of their property for “the purpose of avoiding the payment of their just debts,” held to be a sufficient and proper allegation under sections 13 and 14, page 113, McClellan’s Digest, as to debts not due, and under section 4, of page 111, as to debts actually dire.</p> <p>7. Allegations in the affidavit that one partner absconds, and the other is a non-resident, and that the firm is fraudulently disposing of their property in this State, are not contradictory.</p> <p>8. The determination of the officer issuing a writ of attachment for a debt not due upon the sufficiency of the “proof” required by the statute, is not conclusive upon the court acting upon the face of the papers constituting the proof. If, however, facts and circumstances be stated legally tending to establish the grounds of the attachment, and fairly calling on the officer issuing it for an exercise of his judgment upon the weight of the evidence, the proceedings will not be gnashed by the court, acting upon the face of the papers, on account of error of judgment as to the weight of it. II there is nothing which in law amounts to proof, the proceedings may be quashed as nor am non jucbiee.</p> <p>9. The proof should be reduced to writing and filed before the writ issues.</p> <p>10. An affidavit sworn to before the Clerk of the Circuit Court of one county in another county is a nullity, and constitutes no proof under the above" act, as to an attachment for a debt not due.</p> <p>11. An attachment bond in more than double the amount of the debt demanded is sufficient.</p> <p>12. A bond given by a private corporation as plaintiff in an attachment must be under the corporate seal of the company.</p> <p>13. A writ of attachment need not recite that the affidavit has been made or bond given,</p> <p>14. Material defects.in an affidavit or.bond in attachment vitiate the proceedings, and the defects cannot be cured by amendment.</p>

<p>1. The remedy by injunction is a preventive one only, and when the act which is sought to be prevented is done and accomplished, if a party is aggrieved thereby he must resort to some other remedy for redress.</p> <p>3. This court, on appeal from an interlocutory decree of the Circuit Court, refusing to grant an injunction, the record showing that the act sought to be prevented had been done and accomplished, after the refusal of the injunction and before the appeal, is without power to afford relief to the appellant, and will not inquire whether the court erred in its decree.</p> <p>3. There is no error in a Judge of the Circuit Court refusing leave to a complainant, who had filed an original bill for an injunction which had been denied by the Judge, to file a supplemental bill, when the bill showed that the act which the original bill sought to prevent had been done.</p>

<p>1. An agreement in writing to sell personal property, the title to which, is reserved by the seller until the purchase money is paid by the buyer, is a conditional sale, and does not vest title in the buyer until the performance of the condition, to-wit : the payment of the purchase money, notwithstanding that at the time of making said agreement, possession of the property is delivered by the seller to the purchaser.</p> <p>2. Neither the act of the Legislature of January 30, 1838, nor of January 8, 1853, (McClellan’s Digest, p. 765, secs. 1 and 2,) require such an instrument to be recorded.</p> <p>3. It was not the intention of the act of January 30, 1838, nor of January 8, 1853, (McClellan’s Digest, p. 765, secs. 1 and 2,) to give any other construction to an instrument in writing, than the. parties thereto intended.</p> <p>4. An agreement, such as is described in the first head-note, is valid, as against subsequent creditors and bona fide purchasers for valuable consideration, without notice.</p> <p>5. Quere, as to whether such an instrument is not void as to creditors and bona fide purchasers for a valuable consideration, without notice, if not recorded in two years from the delivery of possession of the property, under section 4, act of January 28, 1823, as amended by act of January 7, 1859 ; McClellan’s Digest, p. 212, section 4.</p> <p>6. An assignee, to whom property, held by the buyer as described in. the first head note, is assigned for the purpose of paying the. debts of the buyer, is neither a creditor nor bona fide purchaser.</p> <p>7. On a conditional sale, where the seller reserves title to the property until payment of purchase money, on default of payment thereof, as stipulated, the seller can maintain an action of replevin therefor.</p>

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

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

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

The action is ejectment for the recovery of certain tracts and parcels of laud in the above county, viz: “ Thirty acres of land, being a strip or parcel of land being situated and extending across from north to south two hundred and twenty yards wide from the western boundary of the following subdivisions of sections, namely : the SE quarter of sec. 20, and NW quarter of NE quarter of sec. 29, all of T. 3, R. 7, and also all the land west of, contiguous to, and adjoining…

The following opinion was filed at the June Term, 1885, but upon petition of appellee a rehearing was granted and the cause continued. The opinion on the rehearing was delivered at the June Term, 1886, and follows the original opinion herein. The facts of the case are stated in the opinion.

<p>1. A petition filed under section 4 of chapter 151, Laws of Florida, to have a tax assessment declared illegal, must show that the illegality existed at the time it is filed. (Where it shows that an alleged illegality has been corrected, it is demurrable.)</p> <p>2. The duties of the Tax Assessor of a city are, under the statutes, of a clerical nature. He does not value property, but adopts the valuations made by the county and State officers for the same tax year.</p> <p>3. The failure of a City Assessor to complete the assessment roll during the tax year for which taxes have been levied by the proper municipal authorities does not, under the provisions of the statute regulating municipal assessments, defeat the collection of such taxes. •</p>

The above entitled cases were argued and submitted together, and but one opinion was delivered therein. The facts of both cases are the same, and are stated in the opinion.

<p>1. Where one has paid to another money on a contract and subsequently there is a rescission of the contract entitling the former to recover a part of the money so paid, he may do so upon a count for money had and received.</p> <p>2. The addition of a qualification to an instruction asked, such qualification being framed to suit a state of facts shown by the testimony, is not error.</p>

<p>1. An attachment is “improperly” sued out within the meaning of the statute when the plaintiff has no meritorious cause of action of that class in which the statute authorizes this remedy, or having such a cause of action the ground alleged in the affidavit for its issue is untrue, or not one of the grounds enumerated which must exist before it can be obtained.</p> <p>2. Where the plaintiff has a meritorious cause of action of the class for which an attachment may lawfully issue, and the cause for its issuance is one of those specified in the statute, and such cause is true, a dissolution of the attachment for some mere irregularity in the papers, is not ground for recovery on the attachment bond for “ improperly ” suing out the attachment.</p> <p>3. In an action on an attachment bond for “improperly” suing out the attachment, the declaration must state in what the impropriety of the issue of the attachment, within the meaning of the statute, consisted, and it is not sufficient to allege simply that it was improperly issued.</p>

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

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

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

The appellant, Harris, filed his bill in the Circuit Court for Duval county in chancery, praying that a certain draft, dated July 23, 1884, drawn by said Harris, to his order, on.

Appellant filed his bill against the appellee in the Circuit Court for Hernando county, in chancery, August 22, 1885. Subpoena issued same day, returnable September 7, 1885, and was returned by the sheriff as having been served on August 25, 1885.

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

Writ of Error to the Circuit Court for Escambia county. Mr. Justice Raney did not sit in this case. The facts of the case are stated in the opinion.

Writ of errror to the Circuit Court for St. Johns county. Mr. Justice Raney did not sit in this case. The facts of the case are stated in the opinion.

Writ of error to the Circuit Court for Suwannee county. Mr. Justice Raney was absent when the opinion in this case was delivered. The facts of the case are stated in the opinion.

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

Writ of Error to the Circuit Court for Orange county. Mr. Justice Eaney did not sit in this case. The facts of the case are stated in the opinion.

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

<p>Where, on a suggestion of a diminution of the record, the deficiency alleged consists of papers which, though on file before and at the time of the trial, were never introduced or oifered in evidence and were not incorporated into the hill of exceptions or in the record of the evidence made on demurrer thereto, and as to which no action of the Circuit Court was had or asked, and which are not a part of the process or pleadings in the cause, a ewtiorw'i will not he granted. They are not a part of the “ proceedings” of the Circuit Court within the meaning of the statute regulating the return to a writ of error.</p>

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

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

<p>Where no appeal bond has been filed in the time allowed by law, a motion to docket and dismiss appeal will be denied.</p>

<p>1. The time mentioned in section 6, chapter 1938, Laws of Florida, ' within which an application may be made to the court, or a judge thereof, to set aside a “ default or judgment for want of an appearance, answer or plea,” commences to run from the date of the entry of the default without regard to the time when the final judgment based thereon may be entered.</p> <p>2. There is nothing in the statute to authorize the construction that the defendant has the right to make an application to set aside a fault within sixty days after its entry, and also the further right to make a similar application to set aside the final judgment within sixty days after its rendition.</p> <p>3. The words, “default or judgment,” used in the last proviso of said section, are used synonymously and refer to interlocutory judgments.</p>

<p>[For Syllabus see same case, page 546, supra.]</p>

<p>1. When tbe ‘‘assessment roll describes the land assessed as fractional part of section 4, township 21, range 11, and tbe deed of the clerk is to fractional part of section 4, township 11, range 21,” such deed is void.</p> <p>2. A deed by the clerk to any other lands than those assessed, or materially different therefrom, is a nullity.</p> <p>3. A description of lands on an assessment roll so faulty as not to enable the purchaser to identify the land thereby, is an invalid assessment.</p>

<p>1. A final judgment for default in pleading in an action commenced by attachment of property cannot be rendered by the Clerk of the Circuit Court in vacation against a defendant of whom the court has not acquired personal jurisdiction. The judgment in such case can be rendered only by the court in term, or by the judge in vacation.</p> <p>2. An agent of the plaintiff signing an attachment bond as principal therein cannot also sign it as a surety. The requirement of the statute that there shall be two sureties calls for the responsibility or guaranty of two persons other than the principal.</p>

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

<p>1. In a suit on tbe bond given to obtain a temporary injunction, counsel fees incurred by tbe defendant in tbe suit to dissolve sucb injunction are damages tbat may be recovered if covered by language of tbe bond.</p> <p>2. Tbe amount of sucb fees is not to be ascertained by any agreement between sucb defendant and bis attorney, - but must be a reasonable charge for tbe service performed.</p> <p>3. A liability incurred by tbe defendant for attorney’s fees for tbe purpose of dissolving the injunction, is sufficient to enable him to recover from tbe complainant therein a reasonable sum, without having actually paid such fees.</p>

<p>1. The prosecution in a criminal ease cannot call witnesses to impeach the character of the defendant unless such defendant puts it in issue. Particular acts of his, or the commission of other crimes, in no way related to the one on trial, cannot thus be proved against him.</p> <p>2. In a trial for an offence, criminal in its nature (for murder), the State’s Attorney inquired of the witness if he suspected the defendant of having “ stolen his corn,” which, although objected to, was admitted, and he answered, “yes Meld, To be error, as the only effect of the evidence was to prejudice the jury against the defendant, inasmuch as it did not relate to the issue and was immaterial and irrelevant.</p> <p>3. The State’s Attorney is not necessarily compelled to give the names of witnesses not on the indictment, except upon the request of the defendant, and upon the instruction of the court.</p> <p>4. The court may instruct the jury in regard to their recommendation to mercy under the statute or may read, or cause the statute to be read to them by an officer of the court.</p>

<p>1. A bill which alleges that complainant aud defendant having been joint owners of a store house in which the complainant carried on a mercantile business and paid to defendant a stipulated rent for his half of the store house, complainant sold his undivided half of the property to defendant for $3,000, and executed a deed therefor and took a written lease thereof for six months immediately following the date of the deed of sale, and further alleging- that he was indueed to make the sale by the threats of defendant during their time of co-tenancy to eject him from the premises, aud a verbal promise by the defendant at the time of the sale to lease to complainant the store house for three years from and after the expiration of the six months lease, there being no allegation of actual fraud, or that he had received less than the value of the property, does not set forth facts sufficient to justify a court of equity in setting aside the sale.</p> <p>2. A verbal agreement to lease for one year, if it was to commence at a future day, is void under the statute of frauds.</p>

Appeal'from the Circuit Court for Duval county. The original plaintiff in the court below died pending the action, and after the same was at issue, and, thereupon, his administratrix, the present appellee, suggested his death and applied to.have the action proceed in the name of such administratrix, which was ordered. The defendant below moved to vacate this order and that the action be -declared abated.

<p>1. When tlie relation of inn-keeper and guest exists, the inn-keeper can only avoid the extraordinary liability imposed on him by the law for the protection of the bag-gage of the guest, when a loss of the baggage is occasioned by tlie act of God, the public enemy, or the misconduct of tlie guest, or the friend whom he brings with him.</p> <p><3. But when the guest settles his bill and departs from the inn, leaving his baggage behind him, requesting the inn-keeper to keep it until Ms return, wliicli ho says will he in seven or eight clays, and the inn-keeper has ceased to receive any profit from'the entertainment of the guest, or any compensation for taking care of his baggage, the relation of inn-keeper and guest no longer exists.</p> <p>3. In such a case the inn-keeper is the gratuitous bailee of the baggage of' the traveler, and is only responsible, if it is lost, if he is guilty of gross negligence.</p> <p>4. When the inn-keeper, after the departure of the guest, removes the-baggage from the room occupied by the guest, to the main hall of the hotel, from which it was stolen, and the proof shows, that baggage was usually kept there ; that the only entrance to-the hotel was through the office ; that while the hotel was open some person was always in charge of the office, and when it was closed at night a watchman was on duty, there is nothing to-show that the inn-keeper was guilty of gross negligence.</p>

<p>Writ of error to the Circuit Court for Monroe county.</p> <p>The Chief-Justice did not sit in this case.</p> <p>The facts of the case are stated in the opinion.</p>

<p>1. When a telegram is delivered to an operator, employed by a telegraph company, for transmission and delivery to the person to whom it is addressed, and the consideration for said service is paid to and accepted by such operator, the law enjoins on such company prompt and skillful performance of their undertaking.</p> <p>2. If a telegraph company, to whom a telegram has been delivered, as above, fail to transmit or to deliver the same to the person to whom it is addressed, within a reasonable time, such company is responsible for such failure, to the person injured, whether he he /the sender or the person indioated in such telegram as the one to whom it was to he sent, for such damages as are proximate and reasonable and naturally result from such failure.</p> <p>3. It is no defence for said company, when sued for failure to transmit and deliver a telegram, as above, that the sender did not inform them or their operator of its importance, when they fail to show that if they or their oper-ator had received such information, it would in any respect have changed the method of its transmission, or the time in which it was to be sent, the agency employed, the price demanded therefor, or the degree of skill used in its transmission.</p> <p>4. Nor is it any defence of said company that such message is in cipher or words, the meaning of which the operator does not know ; provided, such message is plainly written and the words therein are in the letters of the English alphabet.</p> <p>5. The appellees, ship brokers, residing in Pensacola, having been engaged by a customer to charter a vessel to carry a cargo of lumber from Pensacola to the United Kingdom, sent a telegram to their correspondent in Barbadoes, making an offer for the charter of a vessel, the offer was accepted and a telegram sent appellees, which was received at the defendant company’s office in Pensacola the next day, but which was never delivered to appellees. Their correspondent in Barbadoes, as their agent, signed the usual charter party for appellees. Not receiving an answer to their dispatch they told their customer that they had failed to charter the vessel, whereupon he chartered another. Two weeks afterwards the vessel came to Pensacola, as per the charter party signed by their agent in Barbadoes. They were compelled to re-charter it at a loss ; Held, That the telegraph company was responsible to them for such loss and for their time and exertions in re-chartering sucl) vessel.</p> <p>Raney, J., dissenting, holds that the only damages recoverable are the charges paid for the telegram, as it was in cipher, and its subject matter, or importance, was not known by, or communicated to, the company or the operator.</p>

The decree rendered in the Circuit Court was that the complainant pay to the defendant $795.45 with interest thereon at twenty-five per cent, per annum until paid, and do also pay the costs of suit, and that the deed in question from complainant to defendant be held void, and that thereupon defendant convey to complainant all his interest in the land in question. From this decree both parties appealed. The other facts are stated in the opinion.

~Writ of error to the Circuit Court for Mariou county. Me. Justice Raney did not sit in this cáse. The facts of the case are stated in the opinion.