Volume 26 — Florida Reports

<p>Where real property should be assessed and valued for taxes in separate lots or parcels, an assessment and valuation in blockp or several parcels in gross, will not he set aside, if the owner by listing and valuing his property himself, in that manner, consents to such mode of assessment and valuation. He is estopped to complain that it is illegal.</p>

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

<p>1. An indictment will not be quashed because it does not give the dimensions of a wound; nor.will an indictment in a capita case be quashed upon the ground that it charges that the accused on, etc., “with force and arms at,” etc., “in and upon one M., feloniously, wilfully, of his malice aforethought, and from a premeditated design to effect the death of M.,” upon the ground “that the indictment charges the accused with both murder at the common law and under the statute.” The words “feloniously, wilfully, of his malice aforethought,” may, if objectionable, be treated as surplusage.</p> <p>2. A venireman stated that he had no bias against the accused, whereupon, counsel for the accused asked for reasonable time to procure witnesses to show the bias of the juror, but without stating how long it would require to procure such witnesses, their residence, or the facts to be proven by them: Held, That there was no error in refusing the request made by counsel for defendant.</p> <p>3. An assignment of error which is so general and vague that the Appellate Court is in doubt as to what is meant by it, will not be considered.</p> <p>4. It is not error for the Trial Judge to propound leading questions to witnesses of tender years, for the purpose of ascertaining whether or not the witnesses understand the obligations of an oath, and an objection to this mode of examination of the witnesses is frivolous.</p> <p>5. Evidence was introduced to prove threats of the prisoner “to kill a man before sundown,” on the day M. was killed: Held, to bo a matter to be given such weight by the jury as they, under all the circumstances, think it entitled to.</p> <p>6. Continuous threats made by the prisoner against the deceased, continuing for several months down to within three weeks of the homicide, were properly admitted in evidence.</p> <p>7. An objection that the Court erred in oveiruling the objections put to F., is too vague, the questions and the objections thereto must be pointed out, otherwise they will not be considered by the Appellate Court.</p> <p>8. A witness was asked his conclusions or understandings of the conduct and intention of the accused: Held, that the question was properly excluded; and that the witness should have been questioned as to the acts, etc., of the accused, leaving the jury to draw their conclusions therefrom as to his mental condition.</p> <p>9. When a defendant brings himself within the rule in introducing evidence for the purpose of impeaching the credibility of a witness, it is error to exclude such evidence.</p> <p>10. When witnesses for the defense were introduced, they were cautioned by the State Attorney to tell the truth, and nothing but the truth: Held, that the State Attorney had no authority to thus caution the witnesses, and that such remarks had a tendency to confuse witnesses, and to cast suspicion upon their evidence.</p> <p>11. Upon the subject of insanity the Trial Judge charged the jury that: “ When the defense of insanity is set up as an excuse for crime, burden of proof is upon the person alleging it, and he must prove it to the satisfaction of the jury beyond a reasonable doubt, otherwise the presumption of the sanity of the prisoner will remain in force: ” Held, to be error. When the defense of insanity is relied upon, and evidence is introduced which tends to overthrow the presumption of sanity, if upon the whole evidence the jury entertain a reasonable doubt of the sanity of the prisoner they must acquit, regardless of whether it be adduced by the prosecution or the defendant, and that the accused is not required to establish his insanity beyond a reasonable doubt. But the jury are not to acquit the prisoner upon any fanciful ground that though they believe he was sane at the time the act was committed, yet as there may be a rational doubt of such sanity, he is therefore entitled to an acquittal.</p>

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

<p>1. A husband and wife living together constitute a “family,” within the meaning of the word as used in the first section of the ninth or homestead article of the' Constitution of 1868.</p> <p>2. The third section of the same article provided that the exemption of the homestead from forced sale, granted by the first section, to the head of a family residing in this State, should accrue to his heirs; and under it the exemption from such liability for indebtedness of the head of the family passed on his death to whomsoever the title of the homestead descended by virtue of the statute of descents, and became incident to the inheritance of the land.</p> <p>3. The term “heirs” in the third section includes an adult son, and an adult grandson, the son of a daughter deceased at the death of the head of the family, notwithstanding they were not at his death living at the home place.</p> <p>4. Residence by the heirs on the homestead of the ancestor after his death, is not necessary to continue the exemption of it from his debts.</p> <p>5. A creditor seeking so satisfy a judgment which he has recovered against the administratrix, out of the homestead of her intestate, who was the head of a family residing in this State, can claim no advantage from the fact that the wife has elected to take a child’s part in lieu of dower. If by her election she forfeited her dower interest, the heirs took the entire homestead.</p> <p>6. A judgment rendered against an administratrix on an indebtedness of her intestate not excepted from the exemption provisions of the homestead provisions of the Constitution of 1868, was not a lien on the homestead of the intestate who was the head of a family residing in this State. The title to the homestead descended at his death to his heirs, exempt from any liability for the indebtedness.</p>

<p>The third section of the mechanic’s lien law, act of March 7th, 1877, chapter 3042, laws of Florida, which requires that “every contractor, journeyman or laborer, employed in the construction or repair of any building, etc., who intends to hold the owner liable for his labor on such building, to give notice to the qwner, in writing, setting forth the amount of his claim and the service rendered, for which the employer is indebted to him, and that he holds the owner responsible for the same,” was repealed by the act of February 16, 1885, chapter 3611, laws of Florida.</p> <p>Whether circumstances might not require such notice not decided.</p>

<p>1. An appeal from an order dissolving an injunction does not of it self reinstate the injunction, but an appeal, and an order by the Circuit Judge or a Justice of the Supreme Court under the statute that the appeal shall operate as a supersedeas to the order appealed from and a compliance with the terms of the supersedeas order as to giving bond, do restore the injunction.</p> <p>2. If a person is entitled to an exemption out of personal property which has been levied upon by a Sheriff, it is his right to have the exemption set apart in kind, and if this right can at any time be denied him to the extent of having the entire property levied on sold, and of remitting him to taking the money value of the exemption, if it shall be found at the end of litigation that he is entitled to the exemption, it will at least not be done where it is not shown that the delay incident to setting aside the property claimed as exempt, will be fatal to the interests of the parties concerned.</p> <p>3. Where the sale of goods, wares and merchandise has been enjoined until one thousand dollars’ worth of personal property shall be set aside for complainant as the exemption of personal property allowed the head of a family by the Constitution, the property claimed as exempt to be scheduled immediately in the manner directed by law, and remain in the possession of the Sheriff, and subsequently the injuuction is dissolved on motion of defendants, and the complainant having appealed from the dissolving order, an order is made that the appeal shall operate as a supersedeas on the filing and approval of a specified bond, the appellate court will not, on petition of the appellees acting under the assumption that the required bond has been given, vacate or modify the supersedeas so as to permit a sale of the entire property on the ground that it is perishable, and that the sheriff, misunderstanding the scope and meaning of the supersedeas order, refuses to sell the property levied on or any part thereof, particularly where it is not shown that the property is perishable to the extent that would render the delay fatal to the interests of the parties concerned.</p> <p>4. Where a supersedeas order, made in a chancery appeal to the Supreme Court, requires that the bond shall be conditioned for tlie payment of damages and costs, and a bond conditioned for the payment of costs only, is taken and approved by the Clerk of the Circuit Court as a compliance with the order, the bond will be held insufficient and the approval of it vacated by the Supreme Court.</p> <p>5. A supersedeas bond which does not identify the decree appealed from, will not be accepted or approved by the Supreme Court-</p>

<p>1. The regularity of a decree of foreclosure and sale cannot be questioned on an appeal taken from, a personal decree rendered under the eighty-ninth equity rule for balance of amount reported by the master to be due on the former decree over and above the proceeds of the sale of the mortgaged property.</p> <p>2. That the original promissory note secured by the mortgage, or other proper evidence of the indebtedness, is not shown by the record to have been filed or produced before the master, is a question affecting the regularity of the decree of foreclosure and sale as distinguished from its legality or validity</p>

<p>Where an appeal is taken by a Sheriff under the act of February IT, 1833, Sections 8 and 9, p. 841 McClellan’s Digest, from an order directing him to pay over money to a plaintiff in execution, and the penalty of the appeal bond is less than the amount of the sum and costs ordered to be paid, the appeal will be dismissed on the ground of the insufficiency of the bond.</p>

<p>1. An indictment for larceny sufficiently describes the kind and value of property stolen as “ one lot of silver coin, of the denomination of one dollar each, of the currency of the United States, of the value of twenty-five dollars, of the goods, moneys and chattels of one J. H. M.”</p> <p>2. An indictment for the larceny of “ one lot of silver coin of the United States currency, of the denomination of dollars, half-dollars, quarters, dimes and five-eent pieces, of the value of twenty-five dollars, a more particular description of which coin is to the jurors unknown, of the goods,” etc., is sufficiently specific to warrant a judgment upon a general verdict of guilty.</p>

<p>A motion to dismiss an appeal on account of tlie failure of tbe appellant to file tbe transcript in tbe Supreme Court on or before tbe first day of the term to which the appeal is returnable cannot be based upon the transcript filed by the appellant before the entry of the motion.</p>

<p>1. It is not error to refuse to give instructions to tire jury wliicii bad already been substantially given.</p> <p>2. Where the evidence is circumstantial, but of such a character as to preclude every hypothesis inconsistent with the guilt of the accused, the verdict will not be set aside as being against the evidence.</p>

<p>1. In a prosecution for carrying on tlie business of dealer in spirituous liquors without a license, under the act of March 5th, 1883, it was not necessary for the indictment to allege that the defendant was not a druggist at the time of the sales of liquor, nor that the liquor was not used by a druggist in compounding medicines and the preparation of prescriptions made by a regular practicing physician. If it was a fact that the liquor was sold as a component part of medicines upon such prescription, it was a matter of defense that the defendant could have availed himself of.</p> <p>2. As a general rule, if there is an exception in the enacting clause of a statute, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause, or a subsequent statute, that is matter of defense, and is to be shown by the other party.</p> <p>3. A charge that “the fact that the defendant’s place of business ■ was' a drug store does not raise any presumption in his favor, and if the State has proven to your satisfaction that any single sale of spirituous liquors was made by the defendant, and the defendant has not then shown that such sale was justified under the privileges of a druggist, which he claims, then you should convict: ” Held, to be correct.</p> <p>4. The penalty prescribed for the violation of the act under which the defendant was convicted, was not less than double the amount of the license required to authorize the selling of liquor, $600; and a fine of $900 for the violation of said act was not excessive.</p>

<p>1. The interest which disqualifies a judge under Section 28, p. 337, McClellan’s Digest, is a property interest in the action or its result, in contradistinction to an interest of feeling or sympathy or bias that would disqualify a juror.</p> <p>2. Affinity is the tie between a husband and the blood relations of the wife, and between a wife and the blood relations of the husband, but it does not exist between the blood relations of either party to the marriage and those of the other party, and hence there is no affinity between a brother of a wife and the brother of her husband, and the latter is not disqualified by affinity to preside in the trial of the former for a crime.</p> <p>3. That a judge has boarded with his sister-in-law, and that she is and has been a daily visitor to his home, remaining there sometimes for days, and the judge has always been a great admirer and friend of a brother of the sister-in-law and has always regarded him as scrupulously honest, and these considerations lead him to fear that he might not be able to do the State justice, do not disqualify the judge from presiding in the trial of such brother for a criminal offense.</p> <p>4. Where a party is in custody under an information charging him with a bailable felony, and the judge of the Criminal Court of Record before which he is charged, refuses to take any action whatever in the case, either as to bail or trial, on the ground that he is disqualified by reason of interest and affinity to act, and it does not appear to the Supreme Court on a habeas corpus proceeding that the judge is disqualified, bail conditioned for the party’s appearance before the Criminal Cour-t of Record will be allowed.</p>

<p>X. The act of February 27,1877, section 6, p. 323, McClellan’s Digest, by which the County Treasurers of the several counties were “constituted the treasurers of the School Funds in their respective counties,” did not create a new county office of treasurer of the School Funds to be filled by whomsoever might be County Treasurer, but it transferred t'o the office of County Treasurer the duties and responsibilities of the custody of the School Funds of the county.</p> <p>2. The act of February 18, 1873, section 5, p. 323, McClellan’s Digest, provided that County Treasurers should be required to give bonds to the Governor' in a sum to be fixed by the County : Commissioners, and to be in no county less than double the amount of money that might at any one time come into the treasurer’s hands, and a treasurer’s bond executed under it after the approval of the act of February 27,1877, by which County Treasurers were constituted treasurers of the School Funds, section 6, p. 323, McClellan’s Digest, became a security as well for the proper performance of his duties in connection with School Funds as with any other funds of which he might be the legal custodian under former or other legislation.</p> <p>3. It was the duty of the County Commissioners when fixing the amount of the official bond to be given by a County Treasurer, after the approval of the act making him treasurer of the School Funds, to consider the effect of that act with reference to the amount of money which might at any one time come into his hands.</p> <p>4. An action on the official bond of a County Treasurer, payable to the Governor, held to be properly brought in the name of the Governor for the use of the Board of Public Instruction of the county to recover for school moneys as to which the County Treasurer failed to properly account, and that the action should not have been hrottght for the use of the successor of the delinquent County Treasurer.</p> <p>5. The fact that certain officers when fixing the amount of the penalty of an official bond failed to consider a certain matter which, had they considered it, might have caused them to fix á larger penalty than they did, is not a defense to an action against a surety on the bond.</p> <p>6. A statement in a plea to an action on complete written contract that the contract was not intended to cover the moneys sued for, and that the defendant, a surety, signed the contract with that understanding and belief, is not the averment of a fact, but of a conclusion of law, and is demurrable.</p> <p>*7. In an action instituted in the name of the Governor for the use of a Board of Public Instruction on the official bond of a County Treasurer to recover for school moneys as to which he was in default, the bond having been executed April 14, 1884, and being conditioned that the County Treasurer should render a faithful account of all moneys that might come into his possession or custody by virtue of his said office and faithfully perform all the duties of the office as prescribed by law, a plea was interposed by a surety to the effect that the County Commissioners did not in fixing the amount of the bond take into consideration any school moneys that might he paid to the principal as County Treasurer of the county, but fixed the amount to cover moneys only which were controlled by the County Commissioners; and that said bond was not intended to cover any school moneys which were subject to the control ofi the Board of Public Instruction of the county, and that the surety signed the bond with that understanding and belief: Held, that the plea is demurrable for the reason that the result of the neglect of the Commissioners to consider the school moneys could be nothing more than to make the amount of the bond less than it should have been, and this does not harm the surety; and the remainder of the plea is not the averment of a fact, hut is nothing more than the assertion of a conclusion of law of pleader’s construction of a complete written contract, which contract is the sole repository of the language of the parties to it as to their meaning and intentions, which language viewed in the light of the law controlling the subject of the contract at the time of its execution shows that school moneys subject to the control of the Board of Public Instruction were within the intention of the parties to the bond, and must control the courts as to the meaning, intention and understanding of the parties.</p>

<p>An information filed by the Prosecuting Attorney of the Criminal Court of Record of Lake county in the office of its Clerk, in vacation, does not authorize the Clerk to issue a warrant for the arrest of the person so accused of crime, nor do such proceedings give the Judge of that court power to fix the bail for the person arrested on a warrant thus issued; and a person so held by the Sheriff is deprived of his liberty without due process of law, and is entitled to be discharged on habeas corpus.</p>

<p>1. When there has been trial for an offense and a verdict of guilty, and on motion of the defendant the Court arrests the judgment, or grants a new trial, such defendant has not been in the jeopardy which forbids a second trial, whether upon the same indictment or a new one. The jeopardy ceased upon the arrest, or grant of a new trial, there being no right of appeal for the prosecution in this State.</p> <p>2. The entry of a nolpros in such case is not a bar to another indictment for the same offence.</p> <p>3. An oral charge, being merely a formal requirement, is as to error considered as waived, if not excepted to before retirement of the jury; and the statute which authorizes a party to embody in a motion for a new trial mistakes of the Court not before excepted to, gives that privilege as to substantial matters, charged, but not as to formal matters connected with the delivery of the charge.</p> <p>4. This Court cannot assume, as against the presumption in favor of the action of the judge, that a charge of the Court in relation to the conduct of a witness is erroneous when there is nothing in the bill of exceptions in regard to the nature of the occurrence.</p> <p>5. While the Court may charge the jury that they “ are not to try the case by the argument of counsel,” if by that it be understood as only warning them that they should not be controlled in a decision on the facts by these arguments, as against their own judgment; yet to charge further that “itis the study of a life-time that they (counsel) learn how to distort, change, color and discolor facts, in order that they may use them to the advantage of their clients,” is virtually depriving the prisoner of counsel, and also an implied intimation that the • facts, as stated in the argument of counsel, are not those shown by the evidence, and in this latter respect is a violation of the statute which forbids a judge to charge on the facts. Such a charge disparages the profession unjustly, and tends to prejudice the prisoner, and is erroneous.</p>

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

<p>1. Under the Constitution and laws of this State a county cannot impose taxes except for county purposes, and the building of a bridge in a county within the corporate limits of a municipality in which the county outside of those limits is in no wise interested, the same being for the sole benefit and advantage of the municipality, is not a county purpose.</p> <p>2. Where an injunction is sought against a county to prevent the appropriation of its revenue to aid in the building of a bridge in a city, and the allegations of the bill are that the bridge is on a city street, and not a county road or highway, and that the county outside of the city is no wise interested in it, and that it is for the sole benefit and advantage of the city, it was error to sustain a demurrer to the bill.</p> <p>3. But the statute authorizing the city to build bridges within its limits, does not necessarily revoke the authority given to the county by general statute, without restriction as to locality, to build a bridge within those limits. As there may be bridges serving only a city purpose, so there may be others demanded in the same territory for county purposes; and where the circumstances create this demand, and the bridge is for the use and benefit of the people of the county at largo, or of some considerable portion of them, and intended and needed as well for those outside as for those inside the city, the authority of the county to build it is not annulled by the local city statute.</p> <p>4. The circumstances of each case must determine the lino of authority, even where there is assent of the municipal government; but in case of conflict between municipal and county officials, it would seem that the county should give way, in deference to the general policy against one jurisdiction clashing with another.</p> <p>5. If a county may build a bridge within the limits of a municipality when the circumstances suit, it may also aid the municipality in building one under like circumstances, even though it is to be constructed under a contract with the municipality, and is to be under its control.</p>

<p>1. In an action under the mechanics lien law (Chapter 31^1 Laws of Florida), the affidavit of the plaintiff described the property upon which he claimed a lien, as being a steam saw mill located at a town or place called Emerson, on the S., F. & W. railroad, fourteen miles south of Live Oak, Suwannee County, Florida: Seld, to sufficiently describe the property, as the plaintiff claimed no lien upon the land.</p> <p>2. It is alleged that the jury allowed the plaintiff pay for the use of certain tools used in constructing the mill to which he was not, under the statute, entitled, but the evidence failing to show the amount, if any, allowed for the use of tools, no cause for reversal is shown.</p> <p>3. The proceedings prescribed by the statute for the enforcement of the lien law are purely legal, and confer no equity powers upon the Court, and a proceeding at law under the statute to enforce a lien, is not unconstitutional.</p> <p>4. The suit was commenced against the defendants as partners, but the praecipe and writ were amended describing them as late partners, but the amendment was not carried into the affidavit (which takes the place of a declaration) which describes the defendants as partners, but there was no objection to this variance in the Court below, and the objection comes too late when first made in the Appellate Court.</p>

<p>The petitioner, Brandau, was imprisoned upon a charge of forgery of a draft, but as there is nothing on the face of the draft alleged to have been forged, to induce the belief that the signature thereto was not genuine, and there being no other evidence to show that the petitioner did not sign the draft with his true name, or that the draft had been altered in any respect for the purpose of fraud or deceit, the charge of forgery is not made out, and the petitioner is entitled to his discharge from custody.</p>

<p>1. In transportation of goods over connecting lines of railroad, when there is no special contract, each road is only liable to the extent of its own line, and for safe carriage and delivery to the next road.</p> <p>2. In an action against a railroad company for goods lost by it as a common carrier, the burden of proof is, first, on the plaintiff to show delivery and acceptance of the goods, and next, the loss and value thereof. This shown, the burden is upon defendant to relieve itself of liability by showing legal contract exemption, or that the loss was occasioned by a public enemy, or by the act of God, or that the goods had in themselves elements of destruction which occasioned the loss.</p> <p>3. Where goods to be transported by several carriers are lost or injured, and the last carrier is sued, it will be held liable, if it does not show that the loss or injury occurred on some preceding line, on the presumption that the goods delivered to the first carrier were also delivered to the last, and in the same condition in which they were started.</p> <p>4. The plaintiff in this case delivered goods to a road in Hew York, which were put in a car, and were to be transported in the car over several roads to a point in Florida. The car was received by the defendant and taken over its road to Jacksonville, an intermediate point, and there unloaded by defendant. When th.e next and last carrier made delivery at the point of ‘destination some of the goods were missing and others injured. The evidence does not show that the lost goods were in the caíwhen it was unloaded; or that defendant delivered them to the next carrier, but does show that some of the goods were injured when taken out: Held', That the presumption which applies to a last carrier, that the goods were delivered to it as they were started applies to intermediate carriers; and to defendant in this case, arid tliát defendant; having failed to show delivery of the lost goods to the next carrier; and that those injured were in the condition in which it received them; it is liable:</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. A market, -within tlie meaning of that provision of the Jacksonville municipality act, chapter 3775, statutes of 1887, authorizing the mayor and city council to establish and regulate markets, is a place to which tlie public may resort for selling and buying certain articles; and where tlie articles are exposed for sale in stalls or space provided for such purpose, and for the use of which stalls or space toll may be charged; and for whose government reasonable regulations, having in view the preservation of peace and good order and the health of the community, may be in'eseribed. ></p> <p>2. In the United States the authority to establish and regulate markets falls within the police power of the States; and the right to exercise such authority may be conferred by a State upon municipal corporations, and it is competent for these corporations, if the authority delegated is sufficient, to prohibit the sale of such articles as are within the exercise of the police power and usually sold at markets, elsewhere than at a duly established market.</p> <p>3. The question whether or not a grant to a municipal corporation of power to establish and regulate markets implies authority to prohibit the sale of articles falling within the power and vendable at a market, elsewhere than at a duly established market, not decided, but referred to, and authorities cited.</p> <p>4. A grant to a municipal corporation of power to regulate by ordinance the vending of meat, poultry, fish, fruits and vegetables, gives authority to prescribe by ordinance the times and places of their sale, and to prohibit the sale of them elsewhere. The restrictions as to such times and places must, however, be reasonable, with reference to the welfare of the community, and not be in general restraint of trade. Under this grant, sales may be restricted, under the same limitations, to markets duly established under a grant of power to establish and \ regulate markets.</p> <p>5. The authority of a municipal government to establish and regulate markets implies power to purchase or provide a site, erect necessary buildings and stalls, and, when they are provided either by a lease, purchase or other lawful mode, to adopt reasonable regulations for the government of the market and the business transacted there.</p> <p>6. Where a municipal corporation constructs or rents a building, its principal object being to provide a market house, an appropriation of a portion of the building for another purpose, as the holding of municipal courts, does not x’ender the erection or renting of the building illegal.</p> <p>I. If reasonable facilities for selling at markets are given, regulations, restricting to markets the sale of articles falling within the police power or the sale of which the health or welfare of the community requires to be regulated, do not constitute a prohibition or illegal restraint of trade, or a monopoly.</p> <p>8. The courts are the final judges as to what are proper subjects of the police power, and the law-making power cannot arbitrarily make that a subject of its exercise which, from its nature, is not one.</p> <p>9. Where the language of a statute authorizing an exercise of the police power is so broad as to include things which are not, as well as those which are subjects of the power, the exercise of the power will be confined to things which are legally the subjects of that power.</p> <p>10. Where the statute establishing a municipal government provides that its legislative power shall be exercised by a city council, and that no bill shall become a law until it shall be signed by the mayor, unless he shall fail to return it, with his objections, to the council within a prescribed time, or unless it, on being so returned, shall be passed by two-thirds of the whole number of the council, and also provides that the mayor and council shall have power to establish and regulate markets by ordinance, and to regulate the vending of meats and other specified articles in like manner, a market cannot be established, nor can it or the vending of such articles be regulated otherwise than by municipal law, enacted in the manner above indicated; and an ordinance attempting to authorize the city council or a board of health, or both, to exercise either of the above powers independently, and in disregard of the above provision for ths co-ordinate action of the mayor, conveys no authority in the premises. The authority cannot be delegated.</p> <p>II. The word “privileges,” as used in the act establishing the municipality of Jacksonville, where power is given to levy and collect taxes, for the purpose of revenue, upon “all property and privileges taxable by law for State purposes,” and to license, tax and regulate auctioneers, retailers of liquors, and other named avocations, “and all other privileges taxable by the State,” does not mean such things as are technically privileges and can never be enjoyed or exei’cised except under authority of law, but means other occupations of the same kind as those designated. A market being a franchise, or technical privilege, is not taxable by the city of Jacksonville for revenue purposes.</p> <p>12: Th'e municipality of Jacksonville is not given the power which the State has of selecting the subjects of occupational taxes for raising revenue; but is limited to the occupations named in its .charter abt or the revenue laws of the State.</p> <p>13. The first section of Article XII, chapter 3775, of the statutes, as amended by the eleventh section of the act of May 31st, 1889, does not in its imovision; “privileges may be licensed and taxed by city ordinances,” designate subjects of taxation. The purpose of the section is to regulate the manner of assessing and levying taxes on real and personal property and taxing avocations elsewhere subjected to municipal taxation.</p> <p>14. Wherever the power to authorize or license a person to establish a market exists in a municipal corporation, a fee for the permit, or license, may be charged by the municipality as a police regulation, although the power to exact a tax for revenue may not exist. A sufficient fee may be charged under the police power to cover not only the necessary exjiense of issuing the license, but also that of the additional labor of officers and other expenses imposed upon the public by the business, but no more.</p> <p>15. A license to a pei’son to sell meats or other thing named in the grant to the municipality of Jacksonville of power to regulate the vending of meats, etc., is not the grant of a right to maintain a market within the meaning of the legislative grant of authority to establish and regulate markets.</p> <p>16. The grant of authority to regulate the sale of meats, etc., by ordinance, is one of police power. Under it the hours, the places, and rules for conducting the business may be pre1 scribed, and the establishment of fixed places of sale may be prohibited in localities from which their exclusion is dictated by sanitary considerations, and, as in the case of markets affording reasonable facilities for all who may desire to engage in vending such articles, the sales may be confined to particular places; yet all this must he done by impartial and general regulations, affording the same rights to all alike upon the same conditions.</p> <p>IT. The grant of authority to regulate the vending of meats', etc., does not give power to tax for purposes of revenue, the occupation of vending any of the named articles, but it, in connection with the grant of power to regulate inspection, justifies the imposition of such fees and charges as will cover the expense of both inspecting the articles offered for sale and of the police supervision of the business necessary to prevent its becoming harmful to the community.</p> <p>18. The power to establish markets cannot be used to create a monopoly of the right to sell.</p> <p>19. The police power cannot be parted with or impaired by contract.</p> <p>20. The power of a municipal government to establish markets, implies the authority to change their location as the convenience of the community may dictate.</p> <p>21. Where an ordinance amending a section of a former ordinance provides that such section “shall read as follows,” stating the provisions, the section as amended becomes, for all future purposes, the entire section, and anything which was in the original section but is omitted from it as amended, is repealed.</p> <p>22. Where an ordinance is passed establishing a public market, and providing that no person shall sell or offer for sale at any other place within the city limits, unless he shall be expressly authorized so to do by the city council, and another ordinance providing for the establishment of so-called private markets at which the same articles may bo sold, is passed on the same day but approved by the mayor on a day subsequent to his approval of the other one, the two ordinances are to be considered as one ordinance for the purpose of ascertaining the intention of the municipal law-makers.</p> <p>23. Where parts of an ordinance, or of two ordinances which are in pari metería, are so connected together or dependent upon each other that it cannot be presumed the municipal lawmaking power would have ordained the one without the other, and one or some more of the parts are void because in conflict with provisions of the charter act, all the parts so connected or dependent will be held invalid; e. g., where a public market ordinance provided that uo person should sell certain articles elsewhere than at the public market, “unless such person should be allowed to do so by the city council,” meaning by these quoted words unless he should be authorized to do so under the provisions of a private market ordinance, which latter ordinance was void on account of its conflict with the charter act, the prohibitory clause of the public market ordinance falls within the private market ordinance;</p>

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

<p>1. Divorce on the ground of extreme cruelty will be denied, where there is no actual bodily violence, unless the treatment, or abuse, or neglect, or bad conduct complained of be such as damages health, or renders cohabitation intolerable and unsafe or unless there are threats of mistreatment of such flagrant kind as to cause reasonable and abiding apprehension of bodily violence, so as to render it impracticable to discharge marital duties.</p> <p>2. Nor will divorce on the ground of habitual indulgence of a violent and ungovernable temper be granted, unless that temper has been displayed towards complainant, and habitually, and with the effect of rendering life an opijressive and intolerable burden, and making it impracticable to discharge marital duties under such burden. Occasional outbursts of passion, petulence, readiness to anger, frequent and unreasonable complaints, though made in a loud voiced, boisterous manner, if these are only calculated to render the relations between the parties unpleasant and disagreeable or simply unhappy, do not furnish sufficient cause for divorce.</p>

This is a case of original jurisdiction. STATEMENT. The following parts of the information, with the statements in the opinion, are sufficient for a full understanding of the decision.

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

<p>1. The plaintiffs leased their store, to Neff & Co., and Neff & Co. made an assignment of their goods in plaintiffs’ store to Fox. Subsequent to the assignment, plaintiffs sued out a distress warrant against Neff <& Co. for rent of the store,'whioh was levied upon the goods in the possession of the assignee. The assignee interposed a claim to the goods levied upon, and at the trial of the cause, the court adjudged that the goods levied upon were subject to the plaintiffs’ lien for rent of the store.' Held, correct.</p> <p>2. The assignee took the goods subject to the plaintiffs’ lien thereon for rent of store.</p>

<p>1. A charter act authorizes the Mayor and Council to impose, by ordinance, fines and terms of imprisonment for the breach of any ordinance, and provides a municipal court for the trial of all offences against ordinances, the establishment of such courts for the punishment of such offences being authorized by the Constitution, and an ordinance regulating the vending of fresh moats ordains that any violation of it shall be punished by fine or imprisonment not exceeding a specified maximum: Held, 1st, That the penalty prescribed is not void for uncertainty; 2d, That leaving to the court the power to fix the penalty for each offending according to its circumstances, was not unauthorized.</p> <p>2. Where a municipal charter act provides that a majority of the members of the Council, shall be required to form a quorum for the transaction of business, and a rule of proceeding adopted by the Council prescribes that a proposed ordinance may be passed on its first reading by a majority vote of the members present, and then placed on a second reading by a like vote; and if passed on its second reading may then be read as passed as a whole on such second reading, but no ordinance shall be put on its third reading at the same meeting at which it is read the first time except by unanimous consent of the Council, the term “unanimous consent of the Council,” means all the members who may be present at the time the action as to putting the ordinance on its third reading is taken, whether a bare quorum or more. It does not require that every member of the Council shall be present and consent.</p> <p>3. Where a municipal government, in the exercise of the police power, imposes a license charge on a business which, for the protection of the health of the community, requires daily inspection and supervision, the amount of the charge will be presumed to be reasonable, and not a tax for revenue, unless the contrary appears on the face of the ordinance, or is established by proper evidence. The courts will not seek to avoid an ordinance by nice calculations of the expense of enforcing police regulations, but will promptly arrest any clear abuse of the power. A monthly license fee of five dollars for vending fresh meats outside of the public market, at places called private markets, Held, under the facts agreed upon as to the expense of regulation, not to show an abuse of the power.</p>

<p>1. Under Chancery Bule 51, a judge may, upon overruling a demurrer to a hill, limit the time for answering to a time within the next succeeding rule day, and if the defendant fail to answer within that time the bill may be taken as confessed and the cause be proceeded in accordingly. Such restriction of time rests in the sound discretion of the Chancellor, and will not be interfered with on appeal, unless it is shown there lias been an abuse of this discretion.</p> <p>2. Parties moving to open decrees by default should show both reasonable diligence and a meritorious defence.</p>

<p>1. The plaintiff sued the defendant railway company to recover the value of a horse killed by the company, the evidence as to whether the horse was killed through the carelessness of the defendant was conflicting, but there was evidence to support the verdict, and the verdict not being clearly against the weight of the evidence, the verdict of the jury will not be disturbed.</p> <p>2. Where the charge of the court below is objected to for the first time in the Appellate Court, it comes too late.</p>

<p>1. A court may suspend sentence on conviction of an offender because of mitigating circumstances, or the pendancy of another indictment, or other sufficient cause, but it does not follow from suspension that a sentence may not be pronounced after-wards.</p> <p>2. A convict cannot be subjected to two sentences for the same offence, but an order to pay costs, with further suspension of sentence, will not of itself take away the power of the court to pronounce sentence at a subsequent term when a different judge is presiding.</p> <p>3. The passing of a term of court at which a pending case is not docketed, nor called, is not a discontinuance of the case, if there is a general order of continuence of all cases not otherwise disposed of.</p> <p>4. If the court still has jurisdiction of the case, and another than ‘the trial judge afterwards presiding passes sentence, if there is error in such sentence it cannot be corrected by habeas corpus, but by writ of error.</p>

<p>1. Where there is a right in a defendant to examine articles contracted for, it is error for the judge to charge the jury they should find for the plaintiff if they believe he delivered the articles to the defendant. The charge implies that the delivery was an acceptance by the defendant.</p> <p>2. That a charge given covers only part of one asked is not sufficient ground for refusing to give the latter.</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. The fact that the plaintiff in error has not paid the damages adjudged against him as for a frivolous appeal on account of his omission to file the appeal transcript in due time in the appellate court, is not ground for dismissing a writ of error subsequently taken to the judgment from which the appeal was taken.</p> <p>2. Objection to part of the record as having been filed in the appellate court subsequent to the issuance of the writ of error on a transcript previously filed on appeal is not a ground for dismissing the writ of error.</p> <p>3. An application to the appelate court by counsel for defendant in error for an order granting leave to withdraw the transcript with a view to testing its correctness,, is an appearance in that court and cures any defect there may have been in the service of the scire facias ad audiendum errores.</p>

<p>1. A motion for continuance addresses itself to the sound discretion of the court, and the Appellate Court will not control the discretion of the nisi prius court in not granting the continuance, unless it is plain that injustice has been .done the party asking the continuance.</p> <p>2. A plea of autrefois acquit is fatally defective if it fails to state that the offence for which the defendant had been tried and acquitted was one and the same offence as that for which he was to be tried again.</p> <p>3. An alleged error will not be considered by the appelate court unless it is specifically pointed out.</p> <p>A It was improper for the Court to instruct the jury that “always remembering that every variance or contradiction is not of itself an indication of any design to evade the truth, on the part of those testifying.” The charge' tended to withdraw the contradictory statements of the witness from the consideration of the jury, whose province alone it was to judge the motives of the witness in making such statements.</p> <p>6, The judge should not say to a person on trial for crime who is about to make a statement of his defence, anything calculated to affect his credibility with the jury.</p>

<p>1. A declaration against a railroad company to recover damages for killing a mule on its road, need not be more specific in its allegation as to locaSty than to state the county in which the killing occurred.</p> <p>2. The report of an employee of the company as to the killing of an animal, if admissible as evidence on behalf of the company, is not so unless it be shown that it was the duty and business of the employee to make such report, and that it was made contemporaneously with the occurrence; nor should the oral testimony of the employee be stricken out on the ground that his report is bettor evidence.</p> <p>3. The engineer in charge of the engine had testified for the company, and on cross-examination was asked “what would be the consequence if yoir should kill stock carelessly and negligently, and should report it to your company?” The question was objected to on the ground that it was now matter, and was irrelevant and incompetent, but the court overruled the objection: Held, that the question was proper, as a means of furnishing the jury a test of the value of his evidence through his relation to the company, and his interest and inclination towards the parties.</p> <p>4. There is no rigorous rule that would exclude cumulative testimony in rebuttal, but its admission or rejection rests very-much in the discretion of the trial judge.</p> <p>5. The statute of 1887, chapter 3740, makes the fact of injuring or killing live stock by the engine, etc., of a railroad company, when proven to the satisfaction of the jury, prima facie evidence of negligence. And where this fact is proved, and the evidence is conflicting in regard to the particular carelessness which it is claimed led to the injury, if the evidence to which the jury gave credence reasonably tends to support their finding, this court will not disturb the verdict.</p> <p>6. Where the testimony as to the value of an annimal killed by a railroad company does not indicate whether the estimate of the value given was based upon the market price, if there is such a price to govern, or upon actual value, and there is nothing to show that an effort was made to ascertain from the -witnesses on what basis the valuation was made, this court will not set aside the verdict on the mere supposition that this basis was not the market value.</p>

<p>1. A party charged with crime is entitled to an acquittal unless proved guilty beyond a reasonable doubt, but whenajudgs fails to charge that the evidence must establish guilt beyond a reasonable doubt, and the evidence is not incorporated in the bill of exceptions, and the record discloses neither a request for the instruction, nor that the omission to charge was called to the judge’s attention, the judgment will not be reversed on writ of error.</p> <p>2. The defendant was convicted for having violated a statute which had not at the time of the filing of the information been in force two years, and the jury wore charged that if they believed from the evidence thatthe offence was committed within two years before the filing of the information, they should convict; this was error, but as the evidence established that the offence was committed after the act under which the defendant was convicted took effect, and before the filing of the information, the error was without prejudice; the evidence not being incorporated in the bill of exceptions, the presumption is that it showed that the offence was committed after the date on which the act took effect, and before the filing of tli.e information.</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 Error to the Circuit Court for Columbia County.</p> <p>The facts of the case ai'e stated in the opinion.</p>

<p>1. The defendant and four other persons were playing a game of “poker” in a room with cards and chips, the chips being of different colors and varied in values, some of the chips being-worth ten cents, the defendant took a percentage off the game, and resided in the room: Held, that the evidence was sufficient to sustain the verdict of guilty of keeping a gambling room.</p> <p>2. The Court charged the jury that if they believed from the evidence that the offence was committed in two years before the filing of the information, they should convict; two years had not elapsed from the date on which the act under which the defendant was convicted took effect, and the filing of the information, but the offence was committed between the date on which the act took effect and the filing of the information; Held, that the charge was erroneous, but without prejudice to the defendant.</p> <p>3. The affidavit of the solicitor to the information conformed to the affidavit prescribed by the statute, and was sufficient.</p>

Writ of Error to the Circuit Court for Duval county. STATEMENT. The declaration alleges that the railroad company was on the first day of January, 1886, indebted to Woodworth, the plaintiff, defendant in error, for work done and materials furnished by him at its request, in the sum of $1,674.47, on which was paid on February 1, 1886, the sum of $540.42, and on May 28th of the same year, the sum of $364.85, leaving the sum of $77o due.

Johns county. STATEMENT. Appellee recovered judgment in an action of ejectment brought against appellants, (husband and wife,) for a piece of land in the City of St. Augustine and described in the declaration as follows : A strip of land being the east end or portion of a certain lot conveyed by Lizzie Andreu and Michael Andreu, her husband, to Mildred Watkins by deed dated April 5, 1884, recorded in Book CC, on page 435, etc., of the public records of St. Johns county,…

<p>1. Where a Constitution, as revised, provides that an officer holding under the. former Constitution shall assume an office of another name created by the new and having all the duties of the other office and also additional duties,-the effect of the new instrument is that the old office shall cease upon the new instrument becoming operative; and this although some of such additional duties may under the terms of the new instrument be performable for a limited time by another officer.</p> <p>2. It is provided by the present Constitution, (Section 8 of the schedule) that the Commissioner of Lands and Immigration in office under tlie former Constitution at the time the present one became operative should assume the office of Commissioner of Agriculture, and that (Section 29, Article 4,) the salary of the Commissioner of Agriculture shall be fifteen hundred dollars: Held, that the Commissioner of Lands and Immigration under the former Constitution became the Commissioner of Agriculture upon the new organic law becoming operative, and that his salary from the first day of January, lSSJ, was fifteen hundred dollars a year.</p> <p>3. Where the Constitution prescribes the salary of an officer, and the legislature enacts a law appropriating an amount large enough to permit his being paid more, the statute is not legal authority for paying more than the salary prescribed by the Constitution.</p>

<p>The question as to whether or not a town is legally incorporated cannot he raised by a bill for injunction, the remedy being by quo warranto.</p>

<p>A new trial will not be granted on the ground that improper evidence was admitted, when there is no conflict in the evidence, if the fact sought to be proved is amply shown by other evidence, and it is plain that the jury were not misled.</p>

<p>The statute of March 3d, 1883, (Chapter 3416 of the statutes,) enacting in effect that no person shall be licensed to sell intoxicating liquors, wines or beer until he has obtained from the County Commissioners a permit to sell the same, to be issued by them on his application signed by a majority of the registered voters of the election district in which the privilege of selling is to be exercised, and duly proven and published in the manner prescribed, was not repealed by the nineteenth or local option article of the Constitution of 1885, providing for elections to decide whether the sale of intoxicating liquors, wines or beer shall be prohibited in a county, and giving to a majority vote east in an election district in favor of prohibition the effect to prohibit sales in such district, although the majority of the aggregate vote of a county may be against prohibition; nor has subsequent legislation repealed or rendered it inoperative as to any county in which an election may not have been held under the above article of the Constitution.</p>

<p>1. Where a creditor’s bill does not seek to set aside his debtor’s assignment for the benefit of creditors, and no fraud in making the assignment is shown, it is error to decree that the property assigned shall be held subject to a judgment and execution on the creditor’s claim obtained after the commencement of the creditor’s suit.</p> <p>2. A creditor must have prosecuted his claim to judgment to constitute a lien on real property, and to judgment and execution to constitute a lien on personal property, before he can, in a court of equity, question the disposition of the debtor’s property, even though disposed of by fraudulent assignmeut; and the pending of an action at law between the parties which may result in a judgment and execution for the creditor, does not modify this doctrine.</p>

<p>1. Where process of the Supreme Court is returned as served by the Sheriff of a county, who is, however, not the Sheriff of that Court, and a motion is made to amend the return so as to show that it was served by the Sheriff of the Supreme Court through him as deputy, and the only proof of such deputation is that the latter Sheriff delivered to a predecessor of the Sheriff claimed to be such deputy, a paper constituting such predecessor and his successors in office, his deputy to execute all process of the Supreme Court in the county of which he was Sheriff, and a certificate of the Sheriff of the Supreme Court stating, in effect, his conclusion from the execution and delivery of the appointment to the predecessor, that the Sheriff making the service was and is his deputy, the motion should be denied, as the proof does not show the person making the service received or accepted the paper, or other appointment, of himself as deputy.</p> <p>2. Where there has been no legal service of a citation twenty-five days before the term of the Supreme Court, to the first day of which it was made returnable, nor was the writ, placed in the hands of an officer authorized to serve it, a new citation returnable to a day in term Will not be granted by that Court, but the appeal will be dismissed.</p>

<p>1. A will which provides that the residue of the testator’s estate shall be equally divided between his children, butdireets when the division is made, one of the children, naming her, shalx have her share set off to her in other kind of property than slaves, does not vest the legal title of the residue of his real estate in his executors, hut vests it in the children as tenants in common until the partition shall be made.</p> <p>2. Where a devisee, who is a tenant in common with other devisees, dies, leaving a will by which he devises his estate to his niece, the legal title to his undivided interest in the land devised to him, passes under his will to the niece.</p> <p>3. Although an instrument executed by executors, and purporting to “set apart, distribute, and convey unto the estate of D. W. H., deceased,” one of the devisees of the testator, lands described therein does not convey the legal title of the land to the niece or devisee of D. W. H., yet the purpose shown by this deed, (considered in connection with the will of the original testator, and that of D. W. H., devising his interest in the land to his niece, and proceedings instituted in the Probate Court by the executors for the partition of the land, in which proceedings the administrator mm testamento annexo of D. W. H., acted for his estate, bidding in certain lands for it under a system of bidding or so-called sales, adopted for ascertaining the value of the lands, all of which instruments and proceedings connect themselves,).is to set apart the lands described in it as the separate share which she as the person entitled to hold under D. W. H., should take in severalty.</p> <p>4. Where a deed, ineffectual to convey a legal title, has been executed by exgcutors, and when considered in connection with other instruments and proceedings, it shows an intent to partition the lands of the testator and to set apart certain lands as the share which the person entitled to the interest of a deceased son of the testator, should take in severalty, and after the lapse of about eleven years, the person so entitled, the niece and devisee of the son, mortgages part of the land included in the deed, her husband joining in the mortgage, and subsequently the mortgage is foreclosed and the land sold, a legitimate deduction to be drawn from the execution of the mortgage is the acceptance and ratification by the niece of the partition intended by the proceedings, and in the absence of any showing to the contrary, it is to be assumed that she relied on the partition for her right to mortgage the land in severalty.</p> <p>5. A stranger to the common title cannot question the rightfulness of the exclusive possession of one tenant in common as against his co-tenants, and where there lias been an actual partition, such stranger cannot make the irregularity or invalidity of the partition proceedings a defence to a recovery by the party to whom the exclusive possession of the land in question lias, been given. If the legal title to the entire part assigned in severalty did not pass, his title to the extent of his undivided interest is sufficient to maintain or assert his exclusive possession to the whole land assigned him, or any part thereof.</p> <p>6. Where there has been an actual partition of land among tenants in common, and one of them conveys by metes and bounds, a part of that assigned to him in severalty, the grantee has, as to the part so conveyed, the same rights against a stranger to the common title as his grantor had. Though the deed should prove void as to other co-tenants, it is good as against the grantor, and a stranger to the common title.</p> <p>7 A bill of exceptions containing evidence of a witness who testified on a former trial of the same cause and has since died, is not admissible to prove of itself what his testimony on that trial was.</p> <p>8. Where there is error which cannot be said to be without injury» as it cannot be where testimony contributing to the weight of evidence on a point as to which there is conflict of testimony, lias been erroneously admitted, the judgment must be reversed.</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. The defendant pleaded autre fois acquit, which was demurred to oretenus, and the demurrer sustained: Held, that there was no error in sustaining the demurrer, as it was not made to appear that the offence for which the defendant had been tried and acquitted was one and the same offence as that for which he was convicted.</p> <p>2. The testimony of an accomplice, uncorroborated, is sufficient to convict upon.</p> <p>3. When a jury, after thorough deliberation upon any case, shall return into court without having agreed upon a verdict, the Court may explain to them again the law applicable to the case, and may send them out again for further deliberation; hut if they shall return the second time without having agreed on a verdict, they should not be sent out again without their consent, unless they shall ask from the Court some further explanation of the law; hut the mere entry upon the motion docket that the Court sent the jury out the third time without their consent, is no evidence of the fact that the jury were so sent out.</p> <p>4. When the information sets out the offence with sufficient certainty to notify the defendant fully with the nature of the same, the information will not be quashed as being vague and uncertain, nor will the affidavit to the information be held insufficient when it complies with the oath prescribed by the statute.</p>

<p>1. Ordinarily -where the equities of the bill are denied by answer a preliminary injunction will be refused, or if granted on bill will be dissolved; but the rule is not inflexible, there being an exception in cases of irreparable mischief, and the granting or continuing of injunctions always resting in the sound discretion of the Court, to be governed by the nature óf the case. And the rule is modified in this State by the statute which authorizes either party to introduce evidence in support or denial of the bill or answer before the injunction shall he dissolved.</p> <p>2. An affidavit of the complainant which only affirms in general terms -the truth of the statements of the bill, and some of- it denying the negative statements of the answer, while other portions deny statements not responsive to the bill, is not sufficient evidence under the statute to overcome the denials in an answer of the allegations which constitute the equities of the hill.</p> <p>3. Where the hill shows no irreparable mischief through the insolvency of the responsible party, and the answer denies'the equities of the bill, and the evidence under the statute does not overcome the answer, a summary .injunction should not be granted.</p> <p>4. The power of this Court, where on the granting- of an injunction no bond was required, and no affidavit made of inability to give bond, to remand the case with directions to dissolve the injunction unless tlie complainant give bond, instead of remanding it unqualifiedly for a dissolution of the injunction" will not be exercised where it appears, irrespective of the absence of a bond, that the injunction should not have been granted.</p>

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

<p>1. Where the damage which may result from a supersedeas to a decree is of such character that it can be compensated in money,' a supersedeas will be granted, if the appeal does not, upon an inspection of the record, appear to be frivolous; or, in other words, if the points of error suggested by the record are not such as require no argument to show their untenableness; but . where from the nature of the case the damage which may result from superseding an injunction is of such character that it cannot be compensated in money or otherwise, as in the case of the sale of intoxicating liquors in a community, a supersedeas will not be granted, unless the error of the decree appealed from is palpable. An injunction bond will indemnify the party enjoined ‘from selling, but a supersedeas bond is no indemnity to the other parties or the community against all the damage which may resrilt to them from'sales pending the supersedeas¡</p>

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

<p>1= An order dissolving an ancillary attachment is a final judgment at law fi-om which an appeal lies.</p> <p>2= ,An order dissolving an ancillary attachment is a final judgment, although it does not expressly dismiss the attachment proceedings. Lyman, Sears & Co. vs. Alexander, 9 Fla., 489, disapproved.</p> <p>3. A suggestion or statement in the brief of counsel that an order appearing in the appeal transcript was taken from the motion docket, is not evidence that the order was not duly recorded in the minutes of the term of the court at which it appears from the transcript that the motion was heard and determined, such transcript being certified by the clerk as containing a correct transcript of the “record of the judgment.”</p> <p>4. An order duly entered upon the record of a term of the Circuit Court, and, omitting the title of the cause and the signature of the judge, in the following language: “It appearing that notice was given of this motion, and the same being argued, it is ordered that the motion be granted. To which ruling counsel for plaintiff excepted and the plaintiff is allowed thirty days to file bill of exceptions and perfect appeal,” is a final judgment, or an expression of final jitdicial action as distinguished from a direction for a more formal entry by the clerk.</p> <p>5. A. citation to an appellee, issued by a Clerk of the Circuit Court, is the process of the Supreme Court, and must be served by the sheriff of the latter court in person or hy deputy, and service made by any other sheriff simply by virtue of his office, and not as a deputy of the sheriff of the Supreme Court, is not legal, Sec. 11 of the act of February 10, 1832, Sec. 4, p. 93V, McClellan’s Digest, having been repealed by the act of August 1, 1868, Sec. 3, p. 93V, McClellan’s Digest.</p> <p>6. Where process of the Supreme Courtis returned as served by the sheriff of a county, who is however not the sheriff of that court, and a motion is made to amend the return so as to show that it was served by the sheriff of the Supreme Court through him as deputy, and the only proof of such deputation is that the latter sheriff delivered to a predecessor of the sheriff claimed to he such deputy, a paper constituting such predecessor and his successors in office, his deputy to execute all processes of the Supreme Court in the county of which he was sheriff, and a certificate of the sheriff of the Supreme Court stating, in effect, his conclusion from the execution and delivery of the appointment to the predecessor, that the sheriff making the service was and is his deputy, the motion should be denied, as the proof does not show the person making the service received or accepted the paper, or other appointment, of himself as deputy.</p> <p>7. Where there has been no legal service of a citation twenty-five days before the term of the Supreme Court, to the first day of which it was made returnable, nor was the writ placed in the hands of an officer authorized to serve it, a now citation returnable to a day in term will not be granted by that court, but the appeal will be dismissed.</p>

<p>The defendants were playing a game of cards called “poker,” upon a bench in a room adjoining a school-house; one of the parties had his hat under the bench with some “corn” and two dollars' in silver in it, no betting was seen or heard by any witness, and a witness for the State stated that he thought the game was being played for “fun,” and the defendants stated upon oath that the game was being played for amusement, and that nothing whatever was bet on it; Held, that the evidence was not sufficient' to show that the parties were gambling.</p>

<p>1. The indictment charged the defendant with breaking and entering a building (store) in the night time with intent to commit a felony, to-wit: larceny, and the Court charged the jury if they found that the defendant broke and entered the building as charged, in the indictment, they should convict: Held, that the charge referred to the indictment in its entirety, the time of the breaking and entering being included, and was therefore not erroneous in not charging more specifically that the breaking and entering must be in the night time.</p> <p>2. There were §600 worth of goods in the store at the time, and upon going to the store some time during the night, the owner found that some one was inside, whereupon he hallooed, and the defendant and another person jumped out of a window which had been broken open, and upon entering the store the owner found various articles of merchandise packed in sacks: 'Held, that the evidence was sufficient to warrant the jury in coming to the conclusion that the defendant broke and entered the building with the intent to steal goods of the value of more than $20.</p> <p>3. The charge of the Court, and charges given upon request of the State and the accused, should be considered together, and if as a whole, the charge is correct, the verdict will not be set aside upon the ground of alleged error in the charge,</p>

<p>1. Under a Constitution making all offences bailable, except “ capital offences where the proof is evident or the presumption great,” bail will be denied a person under indictment for murder, where the evidence adduced is such that if a jury had found a verdict of guilty of a capital offence, a judge would sustain the conviction, or refuse to grant a new trial. If the evidence is of less efficacy, bail should be granted.</p> <p>2, The charge given by the Circuit Court in the case of Andrews vs, State, as to premeditated design, as such charge appears on page 601 of 21st volume of Florida Beports, is not “quoted with approval,” or passed on otherwise by this Court in that case, in so far as it relates to premeditated design,</p>

<p>The defendant and G. became engaged in a personal difficulty in which G. was killed by the defendant, but the evidence failing to show that the killing was perpetrated by an act imminently dangerous to others, and evincing a depraved mind regardless of human life, although without ally premeditated design to effect the death of any particular individual: Held, not to be murder in the second degree.</p>

statement. The plaintiffs in error, Alice Williams and her husband, sue the defendant in error, alleging inter alia, in the declaration, that the wife was, at a time stated, a passenger for hire on its railroad, and was in a passenger coach, holding a ticket of said company, which she had paid for and which entitled her to ride in a first-class passenger car, and that under the circumstances, she being decently and becomingly dressed, and behaving in a modest, decent and…

STATEMENT. The substance of the petition is, that petitioners and J. R. Newlan and W. B. High were candidates in Suwannee county for members of the House of Representatives, and that Ivey received 6oi votes, Harrell 613, Newlan 574, and High 579; and that the returns from precinct number two, forwarded to the Supervisor of Registration and County Judge, showed that Ivey received 90, and the said Harrell 102 votes at that precinct, and their competitors, Newlan 34, and High…

<p>1. Where the time for the performance of an executory contract has arrived, or where the contract is beihg performed, and one of the parties notifies |the other unequivocally that he will not perform or further -perform his part, or will not accept performance by the other, the latter may treat the contract as put to an end or entirely broken by the former, and, if ready and willing to perform his part, sue him at once for an entire breach of contract, without waiting for the expiration of the time it would take to complete the contract, and can recover as damages the same profits that he would have earned had he entirely performed the contract.</p> <p>2. Where a party to a contract gives the other unequivocal notificar tion by letter that he will not accept further performance of the contract, and then writes another letter to him consenting to accept, without raising the question of his obligation to do so, a specified part performance, of which he has been notified since writing the former letter, but expressly claiming the right to raise the question of his obligation to accept it, and stating that in accepting it he must not be understood as waiving the position taken in his first letter, the acceptance of such part performance is not an abandonment of the breach of contract committed by the first letter, except to the extent of such part performance, and no further offer of performance is necessary to authorize the latter party to treat the contract as entirely broken in so far as it remains unperformed, and sue for such breach.</p> <p>3. Where an executor and executrix are sued upon a contract which upon its face is simply the individual contract of their testator, it being declared on as such, and the pleadings not setting up that it is the contract of the testator and others as partners, the executor and executrix cannot contend that the evidence shows that it is the contract of an alleged partnership; and particularly is this so where a plea setting up such defence has been withdrawn.</p> <p>4. Co-executors, however numerous, are in law but one person, and the acts of any one of them in respect to the administration of tho effects is in law the act of all, and where an act done by a person who is sole executor, will bind him as such it will bind both him and his co-executors if- such relation exists.</p> <p>5i Plaintiffs, one of whom had been told by M. H. S. that he would receive no more logs, wrote to defendants* tho executor and executrix of D". P. S.* referring to the conversation and asking to be informed whether or not they would receive any more logs under the contract between plaintiffs and tho testator. M. H. S. replied, stating- that as the letter related to business of the house of D. P. S., of which he was surviving partner, he would reply in that character, and this and the subsequent letters from him were signed in such character, and plaintiffs addressed him as such in their subsequent letter. M. H. S. in his lettors notified plaintiffs that he would receive no more logs under the contract because it had been fully performed by plaintiffs and the testator and his representatives. The executor and the executrix being sued as such for an entire breach of the contract, as a contract between them and the testator, do not deny in their pleadings that it is the contract of their testator, which upon its face it clearly is: I-Ield : That the letters constituted in law a refusal by the executor and executrix to further perform the contract, and an entire breach of the contract, and not simply a refusal by M. H. S., as surviving partner of the alleged firm.</p> <p>6. Admissions made by a person against his interest are admissible in evidence, and the entire admission, with all its parts, though they may limit, modify or destroy its effect, should be let in, subject to the rule as to credibility ; but assertions made by one in his own interest, not being a part of an admission, are not admissible as evidence of themselves in favor of the party making them.</p> <p>7. Though declarations or assertions made by one party in his interest in tho presence of another, and against the interest of the latter, are not received as evidence in themselves ; they are admissible for the purpose of understanding what reply the party to be affected by them should make. If he has been silent when he ought to have denied, the presumption of acquiescence in them arises.</p> <p>8. The acquiescence inferable from silence when words are spoken to a person’s face, is not inferred from silence as to written communications. The mere omission to answer a letter is not evidence of an omission or acquiescence in the truth of its statements, and does not render the latter admissible as evidence of the truth of such statements as against the party receiving it. Where, however, there has been a correspondence or exchange of letters, and there is an omission upon the part of one of the parties to reply to statements about which ho has knowledge, and which, if not true, he would naturally deny, contained in a letter or letters of the other party which have been replied to, or where he omits reply to a certain letter or letters of the correspondence containing suclv statements, such omissions are evidence to be Considered by the jury in connection with the other circumstances of the case, as tend;, ing to show the truth of the statements not replied to. Such evidence is of lighter character than silence is when the statements are made to the face of a party, and an omission to reply to an entire letter or letters of a correspondence is lighter evidence than an ommission to reply to a statement of the kind in a letter otherwise replied to.</p> <p>9. Plaintiffs wrote to defendants inquiring if they would receive logs in compliance with the contract between plaintiffs and defendants’ testator, and indicating their understanding to be that the contract was still unfulfilled. One of the defendants replied suggesting that the contract may have been fulfilled and the necessity for an investigation and that it wonld be promptly made. Plaintiffs then wrote him repudiading the suggestion, and positively asserting that the contract was in a large part unexecuted. On the same day defendant wrote plaintiffs stating that he had caused the examination to be made and had found that plaintiffs had not only cut over all the lands embraced in the contract, but others not embraced in it, and that the logs cut on the latter lands, which logs he avers plaintiffs had no right to deliver under the contract, were largely more than an offset for any left standing on the contract lands, and announcing in accordance with his former letter that he considered the contract fully executed. On a subsequent day the defendant, behaving then received plaintiffs’ letter, wrote a third letter, making, in effect, his second letter a reply to plaintiffs’ second, except as to one point not material to be noticed here. These letters were put in evidence by plaintiffs, who after the receipt of defendant’s last letter, moved off their teams and ceased to perform tlie contract and sued defendants for an entire breach of it: Held, (1). The statements of the second and third letters of defendants are not admissions against their interests, but assertions or declarations in their interest; (2) That the jury were not wrong in finding that the plaintiffs did not acquiesce in the statements or conclusion of defendands’ second and third letters.</p> <p>10. An erroneous charge is not ground for setting aside a verdict which is in accordance with the law and the evidence.</p> <p>11. The fact that one party to a suit introduces letters in evidence does not of itself make their contents evidence against him.</p> <p>12. Where, in a correspondence between parties, one of them has controverted the proposition previously suggested and subsequently asserted by the other, but has failed to reply to subsequent letters of the latter party asserting such proposition and making allegations of fact as the ground of his conclusion, it is error to charge the jury that if there are any statements in the letters of the latter party against the former’s interest that are not replied to or denied, they are to be considered as admitted by the former party.</p> <p>13. Where, pending the performance of an executory contract there is an entire breach of it by one party for whom the work is to be done, and the other party thereup on sues him, th e m easure of damages is the difference between what it would have cost to perform the contract, and the contract price, had it been entirely executed. In estimating the cost of performance, the price of labor and materials, etc., at the time of the breach, will govern, without regard to subsequent fluctuations. The elements of cost should be ascertained from reliable sources, from practical men having experience in matters of the same kind, and not from loose and speculative opinions. The less time the party who is to do the work is engaged in consequence of the breach, and the consequent release from care, trouble, risk and responsibility, and all necessary items of expense, including also those which though contingent are almost inseparable from the performance of the contract, as well as the value of the use of property necessarily employed in performing the contract, and all outlays of capital for labor, material, etc., should be included in the estimate of the cost.</p> <p>14. A contract for tbe cutting and delivery of all logs of not less than specified minimum dimensions on designated lands, provided that one hundred logs should be delivered daily by one of the parties if the other should require the delivery of that many, and it appeared from the testimony that at least an average of one hundred had been delivered daily up to the time of the breach of the contract, but not that - the other party had required it, and in an action of damages by the former party for an entire breach of the contract by the latter, the judge charged the jury upon the' theory of the necessity for the delivery of that many daily: Held, a proper charge, for the reason that when the action is brought before the expiration of the time required for full performance of the contract, the damages are to be estimated according to the state of circumstances existing at the time of the breach, and moreover it was necessary to. settle upon some number as deliverable in order to ascertain the time it would have required to complete the performance of the contract, which time was indispensable to an ascertainment of the cost of performance.</p> <p>15. Pending the performance of an executory contract for cutting and delivering logs, there was an entire breach of it by the party for whom the work was to be done, and the other party sued him for damages, and the evidence showed that the logs were hauled by teams from the land to the place of delivery, and, according to the average daily delivery—one hundred logs—at the time of the breach of the contract, that it would have taken about two years to complete the contract if it had been fully carried out, but there was no evidence as to the value of the use of the teams: Held, that the value of the use of the teams was an essential element of the cost of delivering the logs, assuming that either one hundred or less had to be delivered daily, and that the testimony, consequently, did not show what would have been the cost of delivering the remaining logs, or completing the contract, and the verdict should have been set aside.</p> <p>16. An assignment of error upon a point as to which there has been in the trial court an admission upon the trial, as shown by the bill of exceptions, that the amount recovered, to which the assignment relates, is actually due by the party assigning the error in the Airpellate -Court, need not be passed upon by latter court.</p> <p>Judgment reversed.</p>

<p>1. The Statute (McClellan’s Digest, 621,) requires the County Commissioners to select from the registered voters of the county a list of three hundred persons, properly qualified to serve as jurors, which list, certified and signed by the chairman of. the board, shall be forthwith delivered to the clerk, and by him recorded in the minutes of the County Commissioners, but does not require such list to be recorded in the minutes of the Circuit Court.</p> <p>2. The defendant requested the judge to give a certain charge, which was given, but the judge failed to sign and seal the charge, and to declare the charge given: Seld, not to be • error, as the defendent had the benefit of the charge, and as there was no exception at the time to the failure of the judge to sign and seal the charge, or to pronounce the charge given.</p> <p>3. When it is alleged in a motion for new trial, that the judge used improper language to or in the presence of the jury, the language imputed to the judge will not be considered by the Appellate Court if not incorporated in a bill of exceptions.</p>

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