Volume 23 — Florida Reports

<p>Writ of Error to the Circuit Court for Escambia county.</p> <p>[The opinions in this case were not given to the importer with the other opinions delivered at the Jane Term, A. D. 1886.]</p> <p>The facts in the case are stated in the opinion.</p>

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

<p>Í. The fact that tlie appellee claims that the appeal has been taken merely for delay and asks for an assessment of damage's for a frivolous appeal under the statute, (Sec. 14, p 842, McC.’s Digest) does not entitle him to have the case heard in motion hour upon a motion to affirm and for damages. The case should he heard, upon the regular call of the docket, like any other case standing for a hearing on its merits, and the application for damages be submitted on such hearing and not by motion.</p>

<p>Appeal from the Circuit Court for Marion county.</p> <p>The facts in the ease arc stated in the opinion.</p>

<p>1. A creditor of one member of a partnership cannot garnishee a debtor of the partnership.</p> <p>2. An allegation by the creditor of one partner that the debt due to the partnership was for insurance of certain furniture destroyed by fire and which the partnership used solely for the purpose of conducting a gaming business, and that the partnership existed for no other than gaming purposes, though admitted by the debtor of the partnership, does not create an exception to the above rule or render the firm debtor garnishable in behalf of the creditor of one member of the firm. The other member of the partnership not being before the court, neither his interest nor that of the debtor partner in the partnership assets can be adjudged, nor does the statute provide for malting the former a party and settling the partnership accounts.</p> <p>3. It seems not only that where in ai: illegal venture there have been profits made, an account may he had in equity by one partner against another who has them and is seeking to appropriate them ; but also that where there has been a loss in the venture and an adjustment between the partners and an obligation has been given by the debtor partner to the other that an action may be maintained on such obligation.</p>

<p>Where a prisoner who has been sentenced to hard labor in the State Prison obtains, upon writ of error, a new trial while he is performing such labor under the contractor for services of such convicts, and the contractor or State retains him in such custody after the mandate ordering the new trial has been issued, the prisoner will, upon habeas corpus, either he remanded to the jailor of the county where his cause is to be tried, or, if the case be bailable, will be released on bail to appear at the next term of the Circuit Court to answer the indictment.</p>

<p>1. A refusal by an appellant to comply with Supreme Court Rule 21, as to a money deposit or bond to secure the Clerk’s costs, is a ground for the dismissal of an appeal which has not been docketed.</p> <p>2. Dismissal ordered unless the rule shall be complied with in twelve days.</p>

<p>1. An order allowing further time for making up and signing a bill of exceptions, must, under Rule 97 of the Circuit Court Rules, bo entered in the record or minutes of all the proceedings of the court, which, under the statute (Sec. 6, p. 174, McC.’s Dig.) the' Clerk is required to keep, and the Judge required to sign before the adjournment of the term. Ail entry upon the motion docket is not sufficient.</p> <p>3. Where the transcript shows that a formal order has been made and signed by the Circuit Judge, but not entered in the minutes, the final hearing of the case upon its merits may be postponed a reasonable time to enable the appellant to have such order entered nunc> pro tuno in the minutes and reinstated in the transcript.</p> <p>3. Motion to strike the bill of exceptions granted without prejudice to an application by appellant for postponement of hearing under the second head note.</p>

<p>Appeal from 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 Putnam County. This was a motion “ to strike from the record of said case the bill of exceptions and all the evidence and other matters contained therein, and all in the record, because, the appeal having been abandoned and writ of error adopted in lieu thereof, .the said bill of exceptions and all matters of evidence and other things contained therein are improperly made part of said record.”

The original opinion in this case was delivered at the January term, 1885 ; upon petition of appellees a rehearing-was granted, and the opinion upon re-hearing was delivered; at the January term, 1887. The facts of the case are stated in the opinion and in the case of Knox et al. vs. Spratt and Barnett, 19 Fla., 817.

<p>i. When one partner files a bill against his copartner, praying therein a settlement of all the partnership matters, individual indebtedness from the defendant to the complainant, existing before the formation of the partnership between them and not alleged in the bill to have entered into or formed a part of their partnership agreement, either at the inception of the partnership or subsequently, cannot be taken into account in a settlement between them.</p> <p>•3. The burden of proof in a suit for the settlement of partnership accounts is on the complainant, and if he cannot furnish evidence sufficient to enable the master to state an account, his suit, so far as the settlement of accounts is concerned, necessarily fails.</p> <p>.3. Until it is shown by proper allegations and proof thereof that there has been either a profit or a loss in the partnership affairs a court cannot say whether there is anything to divide.</p> <p>■i. Upon a dissolution and settlement of a partnership the amounts advanced individually for the joint business by each partner should be ascertained and a balance allowed the one making the greatest advances of the excess of his advances over the advances of his copartner, which excess is a lien on the partnership property, and on a sale by a master of such property, and the payment of such excess to the partner entitled thereto, the remainder should be divided between the partners according to their respective interests.</p> <p>.0. When a deed to land is made jointly to two persons, in the absence of proof to the contrary it will be presumed that each one paid his proportion of the purchase money.</p>

The above entitled cases were argued and submitted together, and but one opinion was delivered therein. The original opinion was delivered at the June term, 1885 ; a re-hearing was granted, and the opinion on re-hearing was delivered at the January term, 1887. The facts of the two cases are similar, and those oí the one last named, Brenner, Son & Co., vs. Jones et al., are stated in the opinion.

<p>1. Under out statutes when administration has been granted to an administrator on the estate of a decedent, and said estate is unsettled and the administrator thereof not discharged, the heirs at law of such decedent cannot maintain a suit in ejectment for the recovery of real' estate of said decedent. The adminstrator is the proper party plaintiff in such a case.</p> <p>2. A judgment of the Circuit Court of the United States is a lien from the time of its rendition on the lands of the defendant therein, lying within the district over which the court has jurisdiction.</p> <p>3. A State statute providing that a judgment rendered in one of the counties of a judicial district shall not be a lien on land situate in another county of said district, unless the same is recorded in the latter county, is not applicable to judgments of a United States Court.</p> <p>4. When a ruling is made in a cause by this court it becomes the law of the case and cannot be reviewed by this court at a subsequent term thereof.</p> <p>■ 5. The effect of section 19 of the Statute of Limitations of February 27th, 1872, discussed and applied. Spencer vs. McBride, 14 Fla., 403, approved.</p> <p>6. Section 21, McC.’s Dig-., page 734, prescribing a time within which a new action or suit may be instituted, where a judgment in a former suit for plaintiff had been reversed on error, or when verdict had passed for plaintiff and judgment thereon had been arrested, has no application when the plaintiff in the former suit discontinued his action and the parties plaintiff in the two suits were not the same.</p> <p>7. When the Statute of Limitations once begins to run no subsequent disabilities can suspend or impede it.</p> <p>8. If a judgment creditor had no notice either actual or constructive of an unrecorded deed made by the judgment debtor to another before the rendition of such judgment, it is immaterial whether a purchaser at a sale under the judgment had notice of such unrecorded deed or not.</p> <p>9. A purchaser with notice from a purchaser without notice takes a good title.</p> <p>10. When defendant is in actual occupancy of a part of the premises in question, to extend the defence of adverse possession to other parts of the tract, he must show that he claims title to the land, under a written instrument as being a conveyance 'of the whole tract of which the portion occupied is a part.</p> <p>11. The possession by defendant necessary to complete the defence of adverse possession must be continuous. What constitutes continuity of possession must necessarily depend largely upon the-circumstances of each case as it may arise. The use to which property is adapted, the actual maimer of its use, the circumstances and situation of - the possessor and partly his intention, must he considered in determining it.</p> <p>12. When both plaintiff and defendant claim title to the land in controversy from a common source, the defendant is estopped from setting up an outstanding title with which he is not connected.</p>

<p>i. Under the Constitution and laws of this State, as they were in August, A. D. 1876, a Circuit Judge was not empowered to set aside in vacation a final judgment, entered during a term of the court on default of'the defendant in a common law action.</p> <p>2. Myrick vs. Merritt, 21 Fla., 799, denying power of Circuit Judge to undo or alter in vacation, under the act of 1879, (chapter 3121) the final disposition made of a case in term time, approved.</p>

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

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

<p>1. A statute authorizing the County Commissioners to employ at hard labor upon public works all persons imprisoned in the jails-of the several counties, under sentence upon conviction of crime, or imprisoned for failure to pay fine and costs, is not rendered unconstitutional or made the exercise of a judicial function by the fact that it does not contemplate that its terms shall bo pronounced as a par} of or incorporated in the record of the sentence of the court, or by the fact that they are not so pronounced or incorporated.</p> <p>2. Such a statute is, as against such objections, purely legislative in its character, and violates no provision of the constitution.</p> <p>3. Sections 1 and 2, page 320, McClellan’s Digest, held to repeal section 3, same page.</p> <p>4. Where the sentence is one of imprisonment and costs, the credit of thirty cents per day under said act (sections 1 and 2) is applicable to costs alone, and no credit that may be given the couvice on his costs will operate to limit the power of the County Commissioner's to employ him during the period of his sentence.</p> <p>5. The expense of subsisting a convict after he has been sentenced to such imprisonment is not a part of the “costs.” Such costs are those legally adjudged against him by the senten'ce.</p> <p>■6. Where a statute imposes a power or duty upon a board of officers, and to execute such power or perform such duty it becomes necessary to obtain a writ of'mandamus, they may apply for the same.</p> <p>'7. The County Commissioners, and not the Attorney General, held to he the proper applicants for a mandamus against a Sheriff obstructing the enforcement of the above statute, and that such an application, though made in the name of the county, and not objected to, is sufficient, even assuming it should have been made in their names and official titles as County Commissioners.</p> <p>8. An allegation in an alternative writ of mandamus, of a demand for certain prisoners “confined in the jail” of the county, “under sentence to imprisonment,” and giving their names, and the dates on and periods for which they were sentenced, is a sufficient allegation that they are, at the time of the application for the writ, so confined.</p> <p>.9. A resolution of a Board of County Commissioners authorizing two of its members to take such action as in their judgment is necessary to utilize the labor of county prisoners on public works is not an illegal delegation by the hoard of its powers under the above statute. It shows a determination by the hoard that the statute shall he enforced, leaving the details of its enforcement to two members, whose action is not put beyond the supervision or control of the board as such.</p>

<p>1. When a passenger goes on the train of a railroad company and pays his fare to be transported to some locality on such company’s-road, and the conductor before the journey is completed tells the passenger that the train will not go to the station to which such passenger has paid to be carried, and that ho can either get olf ■ at the station where the train is then stopping or go to some other point, whereupon the passenger leaves the train, he lias a right of action against the company for damages.</p> <p>•.3. But, if after the passenger leaves the train, the conductor tenders him back the fare for the incompleted part of his journey, and he voluntarily receives it, he thereby waives his right of action.</p>

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

<p>Judgments entered in the Circuit Court Clerk’s office on the same rule day under the practice act of 1873 (chapter 1938) are to be satis- „ fled pro rata out of the proceeds of property upon which writs of attachment have been levied, though such writs were issued and levied at different times or on different days anterior to such, judgment.</p>

<p>Appeal from the Circuit Court for Escambia county.</p> <p>The following is the contract referred to in the opinion:</p> <p>“Pensacola, Fla.</p> <p>“ CONTRACT WITH N. B. TERRY EOR NEXT DRIVE.</p> <p>“ N. B. Terry will take the logs on Pea or Choctawhatchie river in good driving water and deliver to steamboat at head of Choetawhatehie bay, leaving no logs behind, at one dollar per M.</p> <p>“To meet contingencies G. W. Wright will supply provisions and money, the money to pay off - men that may be got rid of. Money for this purpose not to exceed two hundred dollars.</p> <p>“All other men to be paid oft by G. W. Wright, or his agent, at the end of the drive.</p> <p>“ Gr. W. Wright to have the right to follow up drive and see that it is a clean up.</p> <p>(Signed) “ N". B. Terry.</p> <p>“It is a condition of this contract that the whole drive belongs to Gr. W. Wright, except logs that can be identified as the property of other persons.</p> <p>“ All logs put into the drive by other persons will be notified by Mr. Terry that he takes them with the condition that G. W. Wright is to have the refusal of such logs when they aie ready for sale and delivery.</p> <p>(Signed) “G. W. Wright,</p> <p>“I B. Terry.”</p> <p>The other facts of the ease are sufficiently stated in the opinion.</p>

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

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

<p>1. An indictment for murder in the first degree should charge a premeditated intent or desire to kill, as it alone distinguishes that crime from murder in the lesser degrees.</p> <p>2. The hill of exceptions should he full and sufficient, and this court will not examine the assigned errors, when the Judge certifies that it is “an imperfect hill of exceptions,” not showing all the evidence.</p> <p>3. Exceptions taken to the form and validity of the indictment which appears in the record will of course he considered.</p> <p>4. The verdict of the jury, that they find the defendant guilty upon arc indictment, not charging the murder to have been premeditated, will not warrant a sentence of death.</p>

<p>1. Where the transportation of freight, perishable in its nature, is interrupted and delayed by a flood in a river which the track of the railroad crosses, and the freight decays, and there is no negligence on the part of the common carrier in taking care of the-freight or otherwise, the loss'is attributable to the flood as an act. of Cod and the carrier is not liable.</p> <p>2. That a similar flood had occurred once in each of the two preceding years, but the carrier had not, by changing the construction of its l'oad or providing other means of crossing the river, avoided the detention, does not render him liable, such floods being, up. to the time of the trial of the cause, otherwise unprecedented.</p> <p>3. The mere failure to notify the consignor or consignee of the detention, held not to render the carrier liable; the freight being promptly delivered as soon as the subsidence of the waters rendered a continuance of the transportation and a delivery possible, and no negligence in taking care of the freight appearing, and there being no evidence to show that the damage sustained would have been diminished, or to what extent, if such notice had been given.</p>

<p>1. A demurrer to evidence admits tbe truth of the testimony demurred to and all reasonable inferences that may be drawn from that testimony.</p> <p>2. When a demurrer to evidence is overruled by the Judge, he cannot assess the damages that plaintiff has incurred. In such a case the Judge, before discharging the jury, should require them to assess the damages conditionally, or if he discharges the original jury he should, upon overruling the demurrer to evidence, call another jury to assess the damages.</p> <p>3. When this court holds that the issues were properly found on a demurrer to evidence in favor of the plaintiff, but the judgment of the court below is reversed on the ground ■ that the presiding Judge had no authority to assess the damages, the cause will, in the absence of other controlling reasons, be sent back with an affirmance of the findings of the Judge, and instructions to call a jury to assess the plaintiff’s damage, or it may, if the judgment on the demurrer in the court below is in favor of the defendants, and it is apparent from the record that the plaintiff had not disclosed the whole merits of his case, set aside the ruling of the Judge below and award a venire de novo.</p> <p>4. When there is judgment in the court below in favor of plaintiff and judgment is reversed on the ground that the Judge had no authority to assess the damages, and it is apparent from the record that the defendant did not disclose the matters constituting his defense, because the plaintiff had omitted to introduce any evidence by which the jury could assess the damage the plaintiff had sustained, this court in reversing the case will award a verme de novo.</p> <p>5. A policy of insurance against loss by fire which provides, that such loss shall be estimated according to the actual cash value of the property at the time of the loss not exceeding the sum insured, leaves the question of value open, and before a recovery thereon can be had for other than nominal damages, proof of the actual cash value of such property at the time of the loss must be produced to the jury.</p> <p>6. Where the assured party has made written proofs of loss as required by the policy, and delivered such proofs to the insurer, secondary evidence of their contents cannot be introduced by the assured unless he has given notice to the insurer to produce such proofs and he has failed to do so.</p>

<p>1. When a party contracts to cut and haul logs for another, and is by him. prevented from performing his contract, the true rule of damage in such a case is to ascertain the amount of profits the party contracting to cut and haul would have made if he had gone o,n .and completed.the contract.</p> <p>2. When this rule cannot be applied from the peculiar nature of the contract, as when no fixed time is agreed on for the continuance of the contract, or no definite number or amount of logs are agreed on to be delivered, preparatory work done by the plaintiff as a preliminary necessity to the performance of his contract, . although he would not have been entitled to compensation for it if he completed his contract, maybe compensated for in damages to-the extent of reasonable cost if the defendant prevents him from performing his contract.</p> <p>3. If the party for whom the work is to be performed is justifiable in preventing the contractor from going on with his work, such contractor is not entitled to compensation for preparatory work.</p> <p>4. An instruction given to the jury that such contractor, if discharged or prevented from performing his contract, is entitled to damage ■ for preparatory work, is erroneous if not qualified by making such liability dependent upon a finding as to whether such contractor .was unjustifiably discharged or not.</p> <p>5. When the evidence shows that the contractor had used the.preparatory work after its conipletion for the delivery of a pai-t of the logs, a charge which instructs the jury that such contractor is entitled to the cost of his preparatory work, without any deduction of the value the contractor had derived from its use prior to Ms discharge, is erroneous.</p>

Atkinson, who was plaintiff, sued Chipley, for that the plaintiff on June 16th^ 1883, was in the employment of Kehoe & Walker, who were partners’ in the manufacture aud sale of brick, as a general superintendent of their business, under an agreement by which such employment was to be continued for a long period of time, and with a prospect and promise of an interest in the said business; and that the defendant contriving and intending to injure the plaintiff did maliciously…

<p>Appeal from the Circuit Court for Jefferson county.</p> <p>Judge Foster, of the Seventh Circuit, sat in the place of Justice Raney, who was disqualified.</p> <p>In January, A. D. 1857, the Board of County Commissioners of Jefferson county subscribed for and took stock in the Pensacola and Georgia Railroad, and, in pursuance of the statute, on the first day of January, A. D. 1858, issued the bonds of the said county of the denomination of five hundred and one hundred dollars each, respectively, payable to bearer on the first day of January, A. D. 1866, with interest warrants or coupons attached to each bond, for interest at eight per cent, per annum, payable annually on the first day of January of each and every year thereafter and until maturity, and delivered the same to the railroad company in payment of said subscription. These bonds are for convenience designated as Blue Bonds.</p> <p>When said bonds matured the county of Jefferson was without money to pay said bonds and to pay the interest accumulated thereon.</p> <p>The county called in said bonds, and, without any power from the Legislature or authority, issued bonds in lieu of said bonds and for the interest matured, and exchanged the same with the holders of the first bonds. These last bonds are designated White Bonds, and were payable in 1870, 1871, 1872.</p> <p>In the trial of the cause the Judge below ordered separate issues and records to be made up. One in regard to certain Blue Bonds still held and sued on and the other in regard to the White Bonds.</p> <p>Judgment was rendered for the appellee on the Blue-Bonds and the cause continued as to the White Bonds, with leave to the appellee to amend his declaration and to-the appellant to amend its pleas.</p> <p>Afterwards the appellee filed his amended declaration containing three counts, and the appellant then filed plea, in abatement to said suit, and plea in bar to the first count, and demurrer to the second count in amended declaration-</p> <p>The appellee filed a demurrer to said plea in abatement and replication to pleas in bar and joinder on demurrer, and the appellant joined in appellee’s demurrer. The-court below sustained the appellee’s demurrer to the-plea in abatement and overruled appellant’s demurrer to the second count in the appellee’s amended declaration, and. granted appellant until the following day to file additional pleas. Additional pleas were filed to the second and third, counts and issue was joined.</p> <p>A jury was empanelled to try the issue, and verdict was-returned and judgment entered up for the plaintiff in the court below, whereupon the defendant in the court below-appealed.</p>

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

Mrs. Josephine A. Fuller, wife of G-eorge Fuller, the appellant, died in Florida in the year 1870, leaving her husband and one child, the appellee, who was a minor. This suit was brought in the court below by bill filed in 1882 by appellee, by her next friend, against appellant, for an accounting for the property left by Mrs. Fuller at her death, and the income and profits thereof, for a receiver and for other relief.

<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 sale of spirituous liquor, without having a license as a dealer' in spirituous liquors, is a misdemeanor, and a prosecution of (he • offence maybe instituted “within two years next after” the commission of the offence, under the act of July 10th, 1832, page 435, McClellan’s Digest.</p> <p>2. A single sale of a spirituous liquor without having a license is a violaron of the provisions of the Revenue Act of 1883, (chapter-3413.)</p> <p>3. A statute which enacts that an offence shall be punished by fine, is-not rendered unconstitutional by the fact that it does not prescribe the maximum amount of fine which may be imposed.</p> <p>-4. The provision of section 12 of the Revenue Act of 1883, to the effect that any person convicted of carrying on a business for -which a license is x-equired, without having first obtained such a license, shall be punished by a fine of not less than double the amount required for the license, does not violate the Declaration of Rights, that “ excessive fines shall not be imposed.” The minimum fine prescribed for selling spirituous liquors without license is not excessive, nor is the omission to prescribe a maximum fine an imposition by the Legislature of an excessive fine.</p> <p>.15. Courts take judicial notice of the meaning of the word “ whiskey and it is not necessai'y to prove to them that it is a spirituous liquor.</p>

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

<p>1. The plaintiffs in error were tried in the Circuit Court upon an indictment for the larceny of property of the value of twenty-five dollars. They were found guilty of the larceny of property of the value of ten dollars, and were fined. They moved in arrest of judgment upon the ground that the Circuit Court had no jurisdiction : Reid, That jurisdiction is determined by the indictment, and that being for a felony the Circuit Court had, under the Constitution and statutes, jurisdiction, and the motion in court was properly overruled.</p> <p>2. In criminal cases the jurisdiction is determined by the charge made in the indictment, and when the court has acquired jurisdiction by reason of such charge, it has under the law jurisdiction of all lesser offences included” within such charge.</p>

Judge McClellan, of the First Circuit, sat in the place -of Justice Raney, who was disqualified. The appellee, a corporation under the laws of Ohio, filed its bill in the Circuit Court of Franklimcounty, August 21, '1884, against J. M. McNiel, Alton Pierce and Geo. A. Patvton, Collector of Revenue of Franklin county.

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

Jud&e McClellan, of the First Circuit, sat in the place of Justice Raney, who was disqualified. The action was commenced in Walton county, First Judicial Circuit, and transferred to Leon county, of the Second Judicial Circuit of Florida.

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

<p>An instrument intended as an appeal bond and purporting in the body thereof to bind a railroad company, -but which is signed “ J. M. Hardaway, Agent Savannah, Florida and Western Railroad Company,” followed by a scrawl for a seal, is not a valid bond of the company.</p>

<p>"Writ of Error to the Circuit Court for Hernando County.</p> <p>The facts of the ease 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>

<p>1. The prisoner stated in his affidavit for a continuance that the subpoena issued the preceding day for witnesses who were residents of the county had not been served, and that he was informed, that they were temporarily absent from the county at work on a railroad in South Florida. The Sheriff’s return of the subpoena is- that it was served on the witnesses on the day of its issue : Held, That no error appears to have been committed in refusing the motion.</p> <p>2. The sale of spirituous liquors or carrying on of the business of a liquor dealer without a license is not a continuing offence. A single sale is a violation of the statute, and a repetition of sales or continuing in the business of selling is not an essential element of the offence prohibited.</p> <p>3. The rule followed in Brevaldo vs. State, 21 Fla., 789, that if an of-fence is charged as having been done on a certain day and on divers other days, &c., there cannot be a conviction of any substantive .offence committed prior to the time alleged, applies only to continuing offences, and perhaps to all charges of illicit intercourse within a certain period.</p> <p>4. Where an indictment charges the sale of spirituous liquors, or carrying on of the business of a dealer therein without having a license, to have been on a certain stated day and on divers other days and times between such day and the finding of the indictment, all the allegation of time after that of the particular day may be rejected as surplusage, and the State is not restricted to proof of the offence having been committed on the stated day or within the stated period.</p> <p>5. It is not necessary to allege in an indictment for selling spirituous liquors without a license or in one for carrying on the business of a dealer in spirituous liquors without a license, either the name of a person to whom the liquor was sold, or the particular liquor sold, nor that the defendant had a place of business, nor that his place of business was in an election district of a county.</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. Partial failure of consideration is not a good plea to an action on a promissory note given for tbe purchase of lands, where the failure consists in the parcel or plot of land falling short of the quantity described in the deed.</p> <p>3. Where the plaintiff might seem to be entitled to judgment against bad pleas, but took issue on the same instead of demurring, and the pleas are vague and uncertain, so that there is doubt as to tbeir real meaning, this court will not decide for plaintiff upon them until the defendant has had an opportunity to amend.</p> <p>3. A plea of failure of. consideration sworn to, throws the onus on plaintiff, and that is not met without other proof than the note itself; and a demurrer by defendant to evidence in such a case where there is no other proof should be sustained.</p>

<p>1. In a trial for any criminal offence not punishable capitally, a Circuit Judge may charge the [jury orally, if he is not requested, on behalf of the State or the prisoner before the evidence is closed, to charge in writing.</p> <p>2. To convict of the offence of lewdly and lasciviously associating and cohabiting together, under section 7, p. 375, McC’s. Dig., the evidence must show a dwelling or living together by the parties as if the conjugal relation existed. A single or mere occasional acts of incontinency are insufficient to sustain the charge.</p> <p>3. The object of the statute is to prohibit the public scandal and disgrace of such living together by persons of opposite sexes who are unmarried to each other.</p>

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

<p>The right of action for a libel dies in this State with the plaintiff, and the action cannot be revived in favor of his personal representative. Jacksonville Street Ry. Co. vs. Chappell, 22 Fla., 616, reviewed and approved.</p>

<p>1. A delivery of chattels made with the intent upon the part of both the vendor and vendee that the latter shall hold under a deed about to be executed, and which is followed immediately by an execution of such deed, the vendee remaining in possession and exercising his ownership under such possession and deed, is a good delivery in law.</p> <p>2. B., an insolvent debtor, desiring to make an assignment of a stock of goods, &c., for the benefit of his creditors, applied to H. to act as assignee and the latter agreed to do so. Before executing the deed of assignment they were advised that a schedule of the property should be made and attached to the deed. B. and H. then went to the store, and took, with the aid of clerks, an account of the stock, and B., while there, delivered the property to H., who received possession and opened the store and began selling through his clerks, and employed B. as a clerk. B. and H. then went immediately to the office of the lawyer who had drawn the deed, and the schedule was annexed and the deed executed by both parties. After this an attachment sued out by Greeley was levied on the goods-; Held:</p> <p>1st. That the possession of H. was lawful, and as much unden' and by virtue of the deed as if it had been given after the execution of the deed.</p> <p>2d. That Hull’s title as assignee is good as against the attachment, and entitled him to recover the property.</p>

<p>1. An administrator cannot maintain a suit for partition under the , statutes of this State, though such suit was originally instituted by his intestate. Whitlock vs. Willard, 18 Fla., 156, approved.</p> <p>%. Where a husband is a party complainant simply in right of his wife, and has no other status in the pleadings, and the wife dies, and ■ her administratrix is afterwards made a complainant, such husband cannot be regarded as having on the pleadings the status of complainant as her heir, no steps having been taken to revive ‘ the suit as such heir.</p> <p>3. Where a decree has been rendered in the absence of proper parties, it -will be reversed by the appellate court of its own motion.</p>

<p>1. In construing a contract all its parts should be considered; and the point to be ascertained is the meaning and understanding of the parties, as shown by the language used, applied to the subject matter.</p> <p>2. One part of an agreement may be resorted to to explain the meaning- of the language or expressions of another part.</p> <p>3. The lessee of a hotel, and bis lessors and his creditors, who had a mortgage on the hotel outfit, and whose claims were past due, and one 0. entered into an agreement whereby the creditors agreed to forbear the enforcement of their claims for a Stated period. The lessors also made certain concessions for the period stated, or until the creditors should, within such period, be paid. The creditors were also given a lien on additional personal property in and about the hotel. The lessee, Hickey, by said agreement, conveyed to 0. all the personal property in and about the hotel, and agreed, as did the lessors, that 0. should take entire and exclusive charge and management of the hotel, subject only to the right of Hickey, “as innkeeper, to manage said hotel for the-accommodation of transient guests and boarders for the use and benefit entirely of the ” creditors. It was agreed by all that 0. should render the lessors and creditors at least once a month a statement of the business of the hotel, of which he was to be clerk and bookkeeper, and have exclusive charge of all accounts pertaining to its business, keeping also a personal expense account with H.; and that he should remit to the creditors with such monthly statements all moneys over and above the current expenses of the hotel. Upon full payment by 0., within the period stated, of the sums due the creditors, he was to re-convey to Hickey, but upon failure to pay in full he was to oonvey to the creditors, unless the lessors should assume the indebtedness, when conveyance was to be made to the lessors; Held,</p> <p>1st. That the “creditors” (defendants and appellees) did not by such contract become liable for any expense of operating the hotel, and that it was not the purpose of the parties thereto to create any such liability upon the said creditors.</p> <p>2d. That the meaning of the expression as to managing the hotel “for the use and benefit entirely of the” creditors, is shown by the subsequent clauses of the agreement, which provide, in effect, that the net earnings of the hotel should be applied, in so far as necessary, to the payment of their claims.</p>

The first of the following opinions of the court in this cause was filed June 15,1887, and during the time that Hon. G. G. McWhorter was Chief-Justice. The appellees thereupon filed a petition for a rehearing.' On July 1,1887, Chief-Justice McWhorter having resigned,' Hon. A. E. Maxwell was commissioned and took his seat as Chief - Justice, and on July 14,1887, the opinion of the court was filed refusing a rehearing.

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

<p>Where goods are bought upon agreement that notes shall be given for the purchase money when delivery is made, the giving of the notes is a condition precedent, and title does not vest until the notes are given, unless the condition be waived. Whether waived or not, is a question of fact for the jury, to be determined from all the facts and circumstances before them.</p>

<p>1. Venue laid in the margin, not repeated in the body of the declaration, is sufficient, though the action be local.</p> <p>2. Where, in a local action, causes of action, arising in different counties are joined, it. is sufficient under oúr -statute to lay the venue in the county in which the action is hqought.</p> <p>3. Where the testimony, as in this case!, cleahiy sustains the verdict, a new trial should not be grantedoil tjhe ground of insufficient weight of evidence.</p>

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

<p>1. A supersedeas may be granted on an appeal from an order of the Circuit Court setting aside a final decree of that court.</p> <p>2. In determining whether a supersedeas can be granted, it is not necessary or proper to consider the merits of the appeal.</p> <p>3. A Justice of the Supreme Court may grant a supersedeas, notwithstanding a prior refusal of the Circuit Judge to grant it.</p>

Mr. Justice VanValkenburgh did not participate in the decision of this case. The facts in the case are stated in the opinion.

This is a bill in chancery filed by certain citizens of Baker county and praying an injunction restraining the County Commissioners and Clerk of the Circuit Court of the county, who is ex-officio Recorder of the county and clerk of the County Commissioners from removing the county offices furniture, records, etc., from Sanderson to Macclenny, in said county. The election was held as to changing the location of the ■county site, which has for a long time been at Sanderson.

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

<p>1. Irregularity of practice, not objected to on the trial at the proper time, will be considered as waived by tire party having right to-object.</p> <p>2. The statute of 1879, Chap. 3131, giving lien and remedy for rent, is, not restricted to rents of agricultural lands, but applies to alii rental of real property, and is not unconstitutional.</p>

<p>Appeal from the Circuit Court for Duval County.</p> <p>Upon petition for a rehearing.</p>

The declaration of the plaintiff, Lear, contains two-counts.

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

<p>1. Special or local legislation as to cities and towns under section 8, of Article 8, of the Constitution, is not controlled by the proviso to section 21, of Article 3, but may be enacted at any session of the Legislature, and without the notice required by such proviso.</p> <p>2. The Lieutenant-Governor’s office, as it existed under the Constitution of 1868, is continued by the present Constitution for at least the balance of the term of such office, and he was authorized to preside over the Senate, at its 'session in 1887.</p> <p>3. When an act establishes a municipality covering territory occupied by two existing municipalities and by a part of a third municipality, and the title is an act to establish the new municipality, (stating its name) and to provide for its government and prescribe its jurisdiction and powers, a repeal of the existing charters is matter properly connected with the subject expressed in the title of the act, within the meaning of section 16, of Article 3, of the Constitution.</p> <p>4. Where the title of an act designates it as one amending another act, but such act, in fact, amends only one section of the latter statute, the title is sufficient under section 16, of Article 3, of.the Constitution.</p> <p>5. The fact that there are two sections of an amendatory act that expressly profess to amend one section of another statute, does not affect the validity of such amendatory sections. Though inartificial legislation, it but substitutes matter in the form of two sections for matter in the form of one section.</p> <p>6. Where a section, expressly amendatory of another section of a statute, purports to set out in full all it is intended to contain, any matter which wTas in the original section, but it is not in the amendatory section, is repealed by the omission.</p>

<p>t. A statute is not to be given a retrospective effect unless its terms show clearly that such an effect was intended.</p> <p>•%, Where the remedial provisions of a statute are clearly prospective they will not affect the remedy provided by a former act for the enforcement of rights acquired thereunder.</p> <p>3. The act of 1885, chapter 3611, was prospective in its effect in so far as it gave any lien which was not given before, or gave a lien in a different manner from that in which a lien was authorized by previous statutes to be acquired by the same class of persons oiv the same character of property.</p> <p>4. The remedy provided by the statute of 1885 was intended to apply only to rights acquired under that act. The remedy provided by the mechanics and laborer's lien law of 1868, as amended ir» 1877, was not repealed by the act of 1885, as to a lien acquired under the former act before the passage of the latter.</p> <p>5. The allowance under the act of 1885 of an attorney’s fee as costs ins-favor of a plaintiff in a proceeding to enforce a lien acquired under the lien statute of 1868, as amended in 1877, is error, and the judgment, in so far as it allows such fee, is reversible o» appeal.</p> <p>6. Where erroneous proceedings not affecting the validity of the final'. judgment in a cause have been instituted by a plaintiff and op~posed by the defendant, and such proceedings are set aside o» appeal taken by the-defendant, the costs of the same should not-be taxed against the defendant, in the judgment.</p>

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

Writ of error to the Circuit Court for Marion county. The plaintiff in error sued the defendant in error, April 20, 1885, in an action of ejectment to recover the west half of the north-east quarter of section 2, township 15, south range 23, east, situate in Marion county and containing about eighty acres. ' The defendant pleaded not guilty, and the cause was referred to Richard McOonathy, Esq., for trial under the referee statute.

<p>1. The absence from the appeal transcript of a copy of the order allowing time for settling a bill of exceptions is not evidence that such an order was not made and entered in the minutes of the Circuit Court. A statement in the bill of exceptions that such an order has been made is, in the absence of affirmative and clear proof to the contrary, sufficient evidence of'the making and entry of such order.</p> <p>3. Though it is the duty of the Circuit Judge when trying a civil case, ■ other than an appeal from a Justice of the Peace, to charge the jury in writing, yet should he improperly charge orally, no advantage can be taken of the error, unless an exception has been duly taken to the charge as oral at the time it was delivered.</p> <p>S. It is not error but proper for a Circuit Judge to refuse to either direct that a plaintiff take a non-suit, or to instruct a jury that he has not proved certain facts which may be material to his case.</p> <p>4. When the record does not show affirmatively that a Circuit Judge has erred, every necessary presumption is to be made in favor of the correctness of his rulings.</p> <p>5. It is error for a Circuit Judge to charge a jury otherwise than upon the law of the case. To charge that a patent aud act of Congress to the plaintiffs’ grantor, and the deed from such grantor to the plaintiffs, show a fee simple title in them, and that if the jury find for the plaintiffs they should say that the plaintiffs have a fee simple title; and that the homestead title and final certificate m'ade to a person from whom defendants claim, were cancelled by the United States land officers in 1876, and that no title after this cancellation existed in him ; and that the statutes of limitation could not run in favor of any person until January, A. D. 1879, “when the statute'and patent were made to” plaintiffs’ grantor, is improper, as it is ripon the evidence and facts of the case.</p> <p>6. A charge which is objectionable for being upon the evidence, cannot be held to be unprejudicial to the party objecting to it, where the bill of exceptions does not contain all the material evidence adduced on the trial.</p> <p>7. Where the objection t'o'-sevferal instructions- given to a jury is general, and either instruction is correct, the objection should be overruled, but where instructions containing several propositions of law are requested it is not error for the Judge to refuse to give the whole if they contain a single erroneous'proposition. • ’</p>

Writ of Error to the Circuit Court for Putnam county. The indictment in this case was found November 20, 1885, and charges that the road described as leading from Brown’s Landing, on the St. Johns river, to the city of Palatka, and known as the Brown’s Landing road, was, at the time of the committing of the alleged nuisance, and yet is, a common highway, in Putnam county, in this State, made and laid out for the people of this State to go, return and pass at their free…

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

The original bill in this ease was filed by appellant May 25th, 1885. On September 25th of the same year complainant obtained leave to amend his bill, stating the amendment to be made, and a copy of the bill as amended appears in the transcript.

<p>1. Prior to recent legislation owners of live stock were entitled to damages for the killing of same by a railroad train, when the operators of the train failed to exercise watchful and reasonable care to avoid the killing; but where such care was used and the killing unavoidable, the company is not liable—its liability not arising except from negligence.</p> <p>3. A railroad track, straight for a long distance, and a mule first seen on one side of it when the train was two hundred yards off, his head turned from the track, the alarm whistle then blown and brakes put on, but when the train running ten or twelve miles an hour got within two hundred feet of the mule he turned to cross the road, whereupon the engine was reversed, but did not check the train sufficiently to prevent striking the mule as he was going down on the other side: Held, not a case of negligence. Miter, if the mule had been on the track when first seen.</p>

<p>1. The statute of this State to prevent the obstruction of highways changes the common law by requiring that the obstruction should be wiliul to render it indictable.</p> <p>#. The word wilful in statutes like this implies legal malice, evil intent, or the absence of reasonable ground for the accused to believe that the act charged was lawful.</p> <p>.8. An indictment which charges that a highway has been “unnecessarily and unreasonably obstructed,” omitting to charge that it was wilfully done, is insufficient in this State.</p>

<p>1. When tbe government of a city or town is controlled by the general municipal incorporation act neither six months residence nor registration is requisite to eligibility to office in such city or town.</p> <p>2. It is apparent from the proceedings of the Convention which framed our present Constitution, that it was not intended to make the qualifications of officers, other than the Governor and members and Senators of the Legislature, dependent on the qualifications for voters.</p> <p>3. The requisite qualifications for electors do not necessarily apply to officers, in the absence of any constitutional or statutory provision to that effect.</p>

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

<p>1. A juror tendered and accepted, but not sworn, may be challenged as well by the State as by the prisoner.</p> <p>S3. A question to a witness ■ is not objectionable, because general in its terms, the court having authority to restrain or correct the witness when he goes beyond the bounds of legal evidence.</p> <p>3. It is not error to allow a question in respect to supervision of a prisoner’s duties, which does not necessarily imply imputation upon his character.</p> <p>4. The opinion of a witness, except in expert testimony, is not legitimate evidence, as to any matter that may be reproduced before the jury by a witness, it being. the province of the jury to form their own opinion on facts of common experience, uninfluenced by the opinion of any witness on those facts—especially where such opinion is sought on facts given in the testimony of another witness.</p> <p>S. A trial on indictment for murder, conviction and recommendation by the jury to mercy, andón appeal a new trial ordered, nol pros. entered, and a new indictment for the same offence. Conviction under the new indictment without recommendation to mercy, and motion in arrest of judgment, on the ground that the former verdict was acquittal of murder in the first degree, and the prisoner could not be again tried for that offence : Held, 1st. That the question not having been presented in the pleadings or evidence, was not properly before the court; but 2d. That such state of facts did not bring the case within the rule which prohibits a trial for a higher grade of offence than that found on conviction in a former trial.</p>

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

The alternative writ represents that on July 6,1874, the. •County Commissioners of Putnam county laid out a certain road or highway leading from Palatka south to a point on the St. Johns river, known as Brown’s Landing, and such road has been ever since a public road, and known as the Brown’s Landing road, and that the relator, well knowing said road and the convenience of access to the town of Palatka which it gave to lands lying along it, and induced largely by such' easy…